The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit or the grant of a variance from the rule by which that permit application was denied so as to be authorized to install an on-site sewage disposal system (septic tank system) for his property near the Suwannee River in Dixie County, Florida within the purview of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Desmond Harbroe, owns real property in Dixie County, Florida consisting of a lot described as lot 28 of Riverbend Estates. The lot in Riverbend Estates is located at "Hinton's Landing" on the west bank of the Suwannee River. The lot itself is located approximately 1500 feet west of the shoreline of the Suwannee River on a connected canal. The canal is characterized by high banks at the location of the lot and the lot is one of the highest lots in the subdivision, with overstory vegetation consisting of large pines and live oaks. The lot is gently sloping and characterized by well- drained soil consisting of sand down to a depth of 72 inches (a "slight limited" soil). The lot is approximately one and one quarter acres in size and was purchased May 29, 1976. The Petitioner contemplates constructing a single family residence on the lot and it does not presently contain an OSDS. The proposed residence would consist of a two bedroom dwelling with a heated or cooled area of approximately 1200 square feet. A dwelling of this size and type is equated in the standards in the Department's rules with production of 450 gallons per days (GPD) of sewage flow. Although no specific evidence of expected sewage is of record, there is no dispute regarding that figure. Herbert H. Raker is a registered land surveyor located at Box 626, Cross City, Florida 32628. Mr. Raker surveyed the subject lot and established a benchmark elevation of 13.72 feet above main sea level (MSL). That benchmark is six inches above the actual ground or grade level at the location of the benchmark. The site of the proposed installation itself is at an elevation of 13.22 feet above MSL. The ten-year flood elevation for the subject property is 15 feet above MSL. That elevation was established through data supplied by the Suwannee River Water Management District to the Petitioner and submitted to the Department in the application process. That information and the document upon which it is predicated is hearsay, but was not objected to at hearing and, in any event, constitutes an exception to the hearsay rule in the category of government records, compilations and reports for purposes of Section 90.803(8), Florida Statutes, and is, thus, admissable and accepted by the Hearing Officer. The subject property purchased by the Petitioner was for building a single family residence as described above. On December 12, 1989 the Petitioner received a letter from the Suwannee River Water Management District advising that there was no objection by the District to filling the lot in order to bring the surface grade level of that property to a sufficient height so as to comport with the "two year flood" elevation. The critical elevation in relation to the rules at issue however is the ten-year flood elevation. This advice from the Water Management District does not address the issue of filling the lot to bring it up to a level so that the bottom of the subject drain fill proposed would be above the ten-year flood elevation and thus comport with the rules at issue. In this connection, the property is located within the ten year flood plain based upon the evidence establishing that flood plain level to be at IS feet above MSL. The property is also located within the "regulatory floodway" of the Suwannee River. This is a geographical area closer in proximity to the actual free flowing portion of the river than is the boundary of the ten-year flood elevation demarcated area. The rule cited below provides that mounded systems requiring a placement of fill material, or construction above grade, will not be authorized in the regulatory floodway unless there is certification by registered engineers that the placement of fill or the structure placed would not increase the water surface elevation of the "base flood". That certification must be substantiated by data and the method of calculation used by the engineer must be provided. Here there is only a two and one half foot difference between the grade level of the property involved at the site of the proposed installation and the 15 foot ten-year flood elevation. Thus, as Mr. Harbroe indicates, given the overall size of his lot, it would be possible to fill the property to the proper grade level so that the bottom of the drain field trenches, when installed in the resulting mound, would be above the ten- year flood elevation. The Petitioner however supplied no detailed information about how such an alternative system might be installed and operate and, most particularly, did not supply the requisite engineering certification and information which might show that the installation of such a mounded system would not raise the level of the base flood. This might have been done, for instance, by establishing that a sufficient volume of fill could be removed from his property, elsewhere, to build the requisite mound and thereby not alter the surface elevation of the base flood. Such evidence is lacking in this proceeding however and cannot therefore serve as a basis for a grant of the permit, by means of illustrating an alternative system or approach for treating the sewage effluent which will comport with the rules. Pursuant to the authority of the statutes cited in the conclusions of law below and in related rules, lots platted before 1972 are accorded special consideration in determining whether to grant septic tank system permits (or variances). The Petitioner, however, did not adduce evidence of whether the subdivision known by the name "Riverbend Estates" of which his lot 28 is a part, is a platted subdivision at all, and did not establish that even if it is that it was platted and recorded before 1972. Thus no evidence has been adduced which will justify the special consideration provided for in the authority cited below. The grant of variances from the permitting rules involve the demonstration of hardship as a basic consideration. Hardship involves a demonstration that there is no reasonable means by which an on-site disposal system can be installed which will comply with the permitting rules, that is, impossibility of compliance is the bellwether for demonstration of hardship. It is also provided in the variance statute and rules cited below that the hardship may not be intentionally caused by the action of the applicant for the permit or variance himself. The Petitioner, having the burden of proof here, did not adduce direct evidence to establish that any hardship preventing compliance with the permitting rules was not intentionally caused by the Petitioner. However, the overall tenor of the Petitioner's testimony establishes inferentially, without doubt, that the hardship involving the Petitioner's impossibility of compliance with the permitting rules, given the presently prevailing grade level of his lot and installation site, was caused merely by his purchase of the property. He took no action involving that purchase to place himself in a position where he intentionally could claim a hardship situation and a justification of variance from the permitting rules and thus render himself legally capable of installing the subject system. He merely purchased the lot in good faith with, the intention of using it for a single family dwelling and did not intend by that mere act to place himself in a position to claim a hardship situation and thus circumvent the permitting rules. The similar use of the nearby lots in the subdivision for single family dwellings and which he was aware already had permitted septic tank type on-site disposal systems in place and operating led him to believe he could install a similar system. He was thus an innocent purchaser and did not intentionally create a hardship situation to thereby avoid compliance with permitting rules. In fact, however, the Petitioner has not truly established that he is in a hardship situation, that is, that he can not possibly comply with the permitting rules. This is because, by his own admission, he has sufficient land area on his lot to permit the "mounding" of an on-site disposal system. If this were accomplished it is quite likely that he could comply with the permitting rules and not require a variance, based upon a showing of hardship. The problem with this approach is that the Petitioner's proof fails because he did not adduce the requisite engineering certification and testimony justifying the grant of a permit based upon the building of the lot and mounding of the system. If this were accomplished in the future, it is quite likely that a permit could be granted for this lot. In a like vein, in terms of the variance issue portion of this proceeding, it has not been demonstrated by the Petitioner that no reasonable alternative exists for the treatment of the sewage involved nor has it been demonstrated that the discharge from the Petitioner's proposed sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. In this last regard, it although soil conditions prevailing at the proposed installation site and water table elevations beneath the surface of the property are appropriate as that relates to the requisite interval of "slight limited" soil between the bottom of drain field absorption beds and the water table elevation, the fact remains that these trenches or beds are beneath the ten-year flood elevation and thus pose the potential to degrade ground or surface testers. Thus the other requisite elements for establishment of entitlement to a variance from the permitting rules have not been made out by the Petitioner's proof. In fact, the Petitioner's proof establishes that a reasonable alternative may indeed exist for the treatment of the sewage involved with mounding of the system, since his grade elevation is only approximately 2.5 feet below the relevant flood elevation and unrefuted evidence shows that he has sufficient area on his lot to permit the mounding of the system with the requisite adjacent "buffer area". This constitutes a reasonable alternative which may comply with the permitting rules. Unfortunately, however, Petitioner's proof did not include the requisite engineering information and certification so that a recommendation for grant of the permit in the regulatory floodway can be made at this time. Having been denied his permit application on December 19, 1989 the Petitioner on March 5, 1989 applied for the subject variance referenced above. On April l9, 1990 the Petitioner was advised by the Respondent that it was useless to proceed with a variance application and that a formal administrative hearing should be sought before Division of Administrative Hearings instead. This is because of Executive Order 90-14 entered by the Governor, which incorporated the "Suwannee River Task Force" recommendation in evidence and, specifically, "recommendation #36." That portion of the report in effect recommended that on-site sewage disposal systems within the ten year flood plain area should be prohibited. The Department interpreted the effect of that executive order, incorporating the recommended prohibition from the task force report, to mean that such variances absolutely could not be granted by the Department, hence, its recommendation to the Petitioner and others similarly situated, that they should immediately seek a formal administrative hearing on the question, rather than expend time and expense pursuing the Department's internal variance procedure. The Department has thus in this in similar cases interpreted that executive order to create, and effect, a conclusive presumption that variances can not be granted in any case in which the installation site for the on- site sewage disposal system is at or beneath the ten-year flood elevation. In effect, therefore, it declines to exercise any discretion when confronted with variance request related to lots or property where the installation site for the proposed system occurs beneath the ten-year flood elevation.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered denying the Petitioner's application for an on-site sewage disposal permit and denying a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above. DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administration Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4170 Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted but not directly material to resolution of the issues presented for adjudication. Petitioner's Proposed Findings of Fact: (None submitted) COPIES FURNISHED: Desmond Harbroe 4550 N.W. 43rd Street Ft. Lauderdale, FL 33319 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
The Issue The issue in this case is whether the Variance Review and Advisory Committee and the Department of Health had just cause to disapprove Petitioner's application for a variance.
Findings Of Fact The Department of Health (DOH) is the agency responsible for oversight of the on-site sewage treatment and disposal systems program and the Variance Review and Advisory Committee which meets monthly to recommend agency action on variance requests pursuant to Chapter 381, Florida Statutes. In August 1999, Petitioner applied to the DOH for a second variance to extend a variance previously granted in June 1999, to use an existing septic system for six months. Petitioner's application for the second variance stated that county sewer would be available in 2001, and she would be required to hook into the sewer. Therefore, Petitioner wanted an extension to continue using the existing undersized septic system until the sewer was available. She also attached water usage records for June 1998 through July 1999, for her property. Petitioner owns the commercial property served by the septic system and located on Howland Boulevard in Deltona, Florida. The property consists of a strip mall with five offices and one restaurant. The property originally contained six office spaces in 1990, when Petitioner applied for a permit to install a septic system to handle the building's sewage flow. See Petitioner's Exhibit No. 1. Petitioner was granted a construction permit for the septic system on August 14, 1990, which contained the statement: "no food service operations permitted in this building." Prior to May 1999, Petitioner leased an office in her commercial property to Milagros Martinez to operate a sandwich shop. Ms. Martinez applied to DOH for approval to use Petitioner's existing septic system to handle her sandwich shop sewage, and was denied because of increased water use and septic system demands of a restaurant. Petitioner's septic system contains a 750-gallon tank with 162 square feet of drainfield. In order to handle the additional sewage generated by the sandwich shop, the Florida Administrative Code requires a 1350-gallon tank and a drainfield of 787 square feet. There is enough room on Petitioner's property to install a separate septic system to handle the sewage generated from the sandwich shop. Petitioner applied to DOH for her first variance in May 1999, requesting to utilize the septic system to handle the waste from the sandwich shop. Petitioner appeared before the DOH Variance Review and Advisory Committee in June 1999. The committee recommended, and DOH concurred, to approve the first variance with four provisos. See DOH Exhibit No. 2. The four provisos were: The applicant shall obtain and maintain an annual onsite sewage treatment and disposal system operating permit in accordance with subsection 64E-6.003(5), F.A.C. The owner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the onsite sewage treatment and disposal system at least once per month or more frequently as necessary. This variance allows operation of the sandwich shop for no more than six months. During that six months, the applicant shall take all necessary steps to increase the capacity of the system to accommodate the additional 230-gallon sewage flow from the sandwich shop. At the end of the six months, the system shall be in compliance or the sandwich shop shall be closed and remain closed until compliance is achieved. The four provisos were additionally explained to Petitioner in a letter dated July 14, 1999, from Sharon Heber, Director of the DOH Environmental Health Division. See DOH Exhibit No. 1. Petitioner accepted the provisions of the first variance on July 20, 1999. See DOH Exhibit No. 4. Petitioner does not have a current annual on-site sewage treatment and disposal system operating permit as required by the first proviso. Petitioner did not contract with a licensed septic tank contractor to inspect and service her system at least once per month as required in the second proviso. Petitioner called a contractor to inspect her system four times in the six-month period since the first variance was granted. Within six months, Petitioner did not take the necessary steps to increase the capacity of her septic system to handle the additional flow as required by the third proviso of the first variance. The system is not in compliance and the sandwich shop is not closed as stated in the fourth proviso. In August 1999, Petitioner filed for a second variance requesting that the first variance be extended until year 2001. That is the date the county plans to install a sewer line on Howland Boulevard in Deltona, which will serve her commercial property. She submitted a letter from the Volusia County Public Works Service Center stating that the "sewer service is planned to be available sometime in the year 2001." See Petitioner's Exhibit No. 4. The Variance Review and Advisory Committee considered Petitioner's request at their September meeting. The variance committee unanimously denied Petitioner's request for a second variance. The Petitioner's system was not designed to handle an increased amount of sewage flow, and that it would eventually collapse or fail. The committee's approval of the first variance was to allow Petitioner adequate time to install the necessary septic system for the restaurant, and not put Petitioner in the position of telling her tenant she could not open her restaurant. See DOH Exhibit No. 5. When Petitioner's existing system fails, sewage will pond on the ground. The ponding fluid will consist of raw sewage. The leaking/ponding sewage may seep into the groundwater and then into drinking water aquifers. In the right conditions, this pollution can cause the spread of waterborne diseases such as typhoid and cholera, or viral infections, such as hepatitis A or polio.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order affirming the decision of the Variance Review and Advisory Committee and the Department of Health to disapprove Petitioner's second variance application. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2000. COPIES FURNISHED: Connie Biancardi 2820 Howland Boulevard Deltona, Florida 32725-1606 Charlene J. Petersen, Esquire Department of Health Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact The property upon which Petitioner seeks a variance from the normal requirements for attaining a permit to install an on-site sewage disposal system is found in Leon County, Florida. Specifically, it is located at Lot 4, Block A, Killearn Lakes Unit I. The relative position of this lot in the subdivision is depicted within Petitioner's Exhibit 1 and Respondent's Exhibit 2 admitted into evidence. Respondent's Exhibits 3 through 5 are photographs of the site. Petitioner intends to construct a 1,200 square foot residence. As the photographs depict, some preparation has commenced to the extent of lot clearing and other site work where the home would be constructed. Killearn Lakes Unit I is a pre-1972 subdivision. When the development commenced, it was anticipated that a community sewer system would be utilized, as contemplated by the plans submitted in April, 1971. Subsequently, some lots within the Killearn Lakes Unit I were allowed to be developed with the use of on-site sewage disposal systems, namely septic tanks. There are 150 lots in that category. In 1979, with the advent of certain rules under Chapter 10D-6, Florida Administrative Code, the development was allowed to proceed on the basis of four septic tanks per acre. Over time, Killearn Lakes Unit I experienced a history of failures with on-site sewage disposal systems. The failures were promoted by problems with the "sheet flow" drainage system and its patterns of dispersion of storm water runoff, problems of soil permeability and abnormally high wet season water tables, referred to as perched water tables. This resulted in sewage backing up into homes and flowing out onto the ground in the yards of the residences, into streets and onto adjacent neighbors' lots. The problems experienced were widespread within the Killearn Lakes Unit I. This seepage of raw sewage presented a health hazard, as it would on any occasion. Among the residences confronted with this dilemma was Lot 5, Block X, adjacent to the subject lot. Persons residing in that home had to undertake alternative means of on-site sewage disposal to have that system function properly. This included relocation of the apparatus, mounding, use of an aerobic system, and use of pumps to insure that the waste being disposed did not back up into the conveniences within the home. Witnesses who appeared at the hearing described the series of corrections in some detail. Those witnesses included a former owner of that residence and others who had a technical understanding of the problems in that system. The problems in Killearn Lakes Unit I related to on-site sewage disposal systems became so extreme that the Leon County Commission declared a moratorium on the installation of on-site septic tanks in that development. This occurred in 1987. In order to better understand the problems in the Killearn Lakes subdivision, to include Killearn Lakes Unit I, a study was commissioned. That report is referred to as Killearn Lake Waste Water Disposal Study of June, 1987. A copy of the report is found as Respondent's Exhibit 6 admitted into evidence. It was prepared for the Leon County Board of County Commissioners and prepared by the Leon County Public Health Unit with the assistance of the Leon County Department of Public Works, Leon County Building Department, Ochlockonee River Soil and Water Conservation District, Northwest Florida Water Management District, Tallahassee-Leon County Planning Department, Florida Department of Health and Rehabilitative Services, and Florida Department of Environmental Regulation. Some of the highlights of that report concerned the observation that the septic tank systems do not work adequately and that the more systems that are placed the greater the problems. It noted that the nature of the drainage system in this area is a contributing factor to the failures. The soil's poor permeability, relating to the Dothan series of soils in the area which have slow permeability, contributed to the problem. Perched water tables were found above the expected levels for the wet season water tables. They also presented a problem, as did excessive slopes in some areas. In particular, it was noted that 80% of the lots sampled in Killearn Lakes Unit I had severe limitations on the use of on-site sewage disposal systems. Ninety-three per cent of the lots sampled in Block X received excess runoff from other lots and roads at higher elevations. It was noted that French or curtain drains alone would not significantly reduce perched water table complications because of the low permeability of the soils. It was reported that the overall housing density of Killearn Lakes is not particularly high, but the individual lots are small, approximately 1/4 acre in size. This, taken together with the fact that the "sheet flow" concept of storm water management contemplates that the runoff will cascade across the terrain conforming to its contours, means that some small lots will be inundated. This uncontrolled runoff contributes to septic tank problems in that the tanks fail when the soils around them become saturated. The report notes that if there was a different designed drainage system, the impact on septic tanks would be less. The report notes that if something is not done to modify storm water runoff, drainage problems will persist. Consequently, septic tank failures will continue to occur. Concerning the water tables, the soil testing, which was done in Killearn Lakes Unit I, in which the predominant soil is Dothan type, demonstrated that the borings which located mottling of the soils at the expected level of the wet season water table were inaccurate. These indicators did not correspond to reality in that the true water tables were found 12-20 inches above the expected level of the average high water, as seen in the mottling. This phenomenon was revealed in 42% of the lots evaluated which had Dothan soils. The report recommended, among other measures, that no new sewage disposal system permits be issued in Killearn Lakes Unit I until a storm water system had been constructed and demonstration made that the system would collect storm water and thereby lower the perched water table on specific lots under review. The ultimate response to the question of permits for on-site sewage disposal systems in Killearn Lakes Unit I was spoken to in a Resolution of July 14, 1987 entered by the Leon County Board of County Commissioners. A copy of the resolution may be found as Respondent's Exhibit 1 admitted into evidence. It was resolved that the permits for on-site septic disposal systems be reviewed by the Leon County Public Health Unit on a case-by-case basis in accordance with criteria announced at Chapter 10D-6, Florida Administrative Code. This effectively lifted the moratorium. The subject request for installation of an on-site sewage disposal system was reviewed in keeping with the policy decision set forth in the resolution. Respondent's Exhibit 6 admitted into evidence includes a copy of a survey made by the Homeowners' Association for Killearn Lakes, also admitted as Petitioner's Exhibit 1. As part of the study commissioned by the Leon County Board of County Commissioners, it has some relevance in portraying the dimensions of the problem. Those dimensions are better understood by resort to the color scheme which is found in Petitioner's Exhibit 1. It depicts the problem lots in red color, those lots without problems in green color, and the lots upon which no report was made in orange color, as well as vacant lots, to include the subject lot, which have no color scheme. This latter category indicates no participation in the survey. The door-to-door personal survey conducted by Rod Moeller and testified about at hearing does not diminish the impression of the seriousness of the problem with on-site sewage disposal system failures in Killearn Lakes Unit I, which the 1987 study by the Leon County Board of County Commissioners identified. This survey by Mr. Moeller was in a limited area, more specifically related to the portion of Killearn Lakes Unit I nearby the subject lot. The findings of the 1987 study commissioned by the Leon County Board of County Commissioners are accepted as accurate. Eanix Poole, Administrator of Environmental Health for the State Health Office testified at the hearing. He pointed out that the failure rate in the subdivision under question for on-site sewage disposal systems is 25%, as contrasted with the statewide rate of less than 1/2%. He identified the fact that those failures relate to backups within the home and seepage onto the ground. He verified that these events constitute health problems, especially given the number of failures. He sees the lot in question here as being particularly vulnerable to problems given the drainage patterns and its location at the bottom of two hills. The lot in question receives runoff from the two adjacent lots as well. Mr. Poole sees the subject lot as more vulnerable in the wet season and does not believe that any alternatives that are available for placement of the system on the site would sufficiently alleviate the potential failure of the system to make it a successful arrangement. What he sees is a lot in the path of a natural drainage of tremendous quantities of storm water runoff, coupled with poor soil conditions related to soil absorption or permeability in an area where on-site sewage disposal systems have failed. He remarks that dry soils are needed to treat the sewage and that treatment cannot take place in a saturated soil environment. The effects of seepage of the sewage, according to Mr. Poole, is one which can degrade ground water. Mr. Poole is also concerned that the installation of the proposed on-site sewage disposal system above ground will have an adverse impact on the adjacent lots, one of which has already experienced problems. That refers to Lot 5, Block X. These observations by Mr. Poole, as reported, are accepted. Raymond Collins, an environmental administrator with the Respondent's health program office, also testified at the hearing. He is intimately aware of the problems in Killearn Lakes Unit I. Those problems began to occur in the winter of 1986 and continued into 1987. This related to problems with toilets and the seepage of effluent which was running onto people's property and into the streets. He notes a similar failure rate in Killearn Lakes Unit I to that observed by Mr. Peel when contrasted with the experience statewide. In the aforementioned period he received calls and reports from homeowners concerning system failures. In effect what was happening was that the on-site drain fields in Killearn Lakes Unit I would not accept more input and the raw sewage would bubble up and leach out onto the ground. He personally observed a dozen sites which had failures. He was responsible for the coordination of the July, 1987 study which has been mentioned. As a result of that study one of the steps which he took was to advise that staff investigating the permit application requests should elevate the estimation of the wet season water table by 12-20 inches. Mr. Collins agrees with the recommendation of the individual who was assigned to evaluate the application for permission to install an on-site sewage disposal system at the subject lot, who recommended that the application be turned down. Mr. Collins' description of the experience at Lot 5, Block X, related to his knowledge that the initial system had been replaced with an aerobic system, which also proved to be an inadequate on-site sewage disposal system. In 1988, he went to the home of the person living on that lot, and the aerobic system was not working. There was a light rain on that day, and there were problems in the drain-field area. When a soil boring was made to a depth of two feet effluent poured out. The perched water table had risen to a point in the bottom of the drain field, such that when a hole was punched, it provided a conduit for pressure to be relieved. The drain field that was experiencing this problem was not the original drain field. It was a replacement drain field. The drain field being observed was in the front of the lot, right below the ground. The suggestion to alleviate the problem was to move the drain field to the side of the yard and elevate it and install a series of small-diameter pipes. A pump was also needed to move effluent into the drain field, thus, avoiding a backup of the system into the home. He is unaware of any recent failures in the system at Lot 5, Block X. Mr. Collins emphasized the need for soil to remain unsaturated to provide effective treatment and that 24 inches of unsaturated soil is the minimum amount which would be acceptable. Mr. Collins commented about the nature of the subject lot and the fact that other lots drain through it. Mr. Collins commented that the design of the proposed septic tank does not assure success in the treatment of the waste disposed. Unlike the expert of the Petitioner, Mr. Peel, the problem is not that solids are blocking up the system. It is the failure of the soils to accept the volume of water which is being released from the chambers of the septic tank into the drain field. Mr. Collins does not believe that the use of water-saving appliances in addition to the limited size of the home to be built on the subject lot, installation of an aerobic system, and installation of an above-ground system, as proposed, would be successful and not pose a health risk from system failure. The problems would continue to be drainage patterns and poor soils. His remarks, as reported, are accepted as accurate. Terese A. Hegg, Environmental Specialist I with the Respondent's Leon County Public Health Unit, reviewed the application for variance to install the on-site sewage disposal system. She was familiar with the history of problems in Killearn Lakes Unit I before undertaking this assignment and has made more than 50 evaluations in that development. She observed that the "sheet flow" drainage of storm water does not provide reasonable management because it does not drain normally. She is aware that the wet season water table is as much as 20 inches above the normal indicators, as seen through mottling. Her analysis of this site is under the auspices of those requirements announced in Chapter 10D-6.044, Florida Administrative Code, having in mind that the subdivision plat was made before 1972. This includes an examination of the soil characteristics, history of flooding, and water table evaluations. At this site, she noted the poor permeability of the soil. She did soil borings to confirm the nature of the soils and to identify the water table. She took into account the abnormal perched water table that is above what the mottling would indicate as being the wet season water table. Ms. Hegg is concerned that the system on the adjacent lot, which is now functioning adequately, would not function adequately if the subject system was installed. She noted that the drainage pattern from the neighboring lots was toward the subject lot and that water would come from the left and the right lots adjacent to this lot, corresponding to Lots 5 and 3 as you face them. The drainage pattern would then proceed beyond Lot 4 and into a green area. In making her assessment of this application, she was aware of the problems with the on-site sewage disposal system at Lot 5, Block X. The appearance of saturated soil in the entire length of the boring and standing water on the lot is an indication of problems with percolation. The effluent will flow out and onto the ground if these soils are saturated. From her observations and based upon the history of Killearn Lakes Unit I and its failures regarding on-site sewage disposal systems, Ms. Hegg does not believe that the proposed system would successfully address sewage treatment and would promote a risk of on-site sewage disposal system failures for adjacent lots. Ms. Hegg acknowledged that the storm water flows could be diverted; however, she points out that the subsurface water cannot be diverted. Her account of this site and the acceptability of the request for variance as reported is accepted as accurate. Given the soil conditions and the wet season water table expected at this site, the proposed system will not present an adequate unsaturated soil depth for treatment of the sewage and untreated sewage may be expected to seep or leach out onto the ground. On May 22, 1990, Mr. Collins had written to Dr. Richard G. Hunter, Assistant Health Officer for Environmental Health, recommending the denial of the variance request. A copy of that correspondence may be found as Respondent's Exhibit 7 admitted into evidence. It details reasons which are similar to those described in this Recommended Order. As a consequence, even though the Advisory Review Variance Board had looked with favor upon the request for variance, that variance was denied by action of Dr. Hunter on May 30, 1990, which relied upon the insights of Mr. Collins, as described in his May 22, 1990 correspondence. A copy of the letter of denial may be found as Respondent's Exhibit 8 admitted into evidence. The purpose of this hearing was not to examine whether Respondent had abused its discretion in denying the variance. The reason for the hearing was to allow the parties to present their points in an adversarial setting, which allowed each party to explain its viewpoint anew. That was done, and the analysis provided by this recommended order ensued. In deciding the facts, these representations have been made with due regard to the remarks of James Earl Peel, an expert in the design of on-site sewage disposal systems, who had on his staff, Gary L. Wood, P.E. His methods in analyzing the issue of the suitability of the installation of an on-site sewage disposal system at the subject site do not coincide with the methods contemplated in Chapter 10D-6, Florida Administrative Code, which controls. This is especially significant in his approaches to soil characteristics and location of the wet season water table. As noted above, his belief that the problem is one of distribution of solids from the septic tank into the drain field overlooks the more significant problem of water volume discharge from the septic tank into the drain field. In fact, Mr. Peel indicated that he is unfamiliar with the requirements of septic tank design, as described in Chapter 10D-6, Florida Administrative Code. On balance, Mr. Peel's reports, in Petitioner's Exhibits 3 and 4 admitted into evidence and his in-hearing testimony, do not persuade that the system he recommends can be successfully operated at the subject site. His presentation and the overall presentation of Petitioner do not create a reasonable expectation that the system will not fail and create health hazards for the residents of Lot 4, Block X, and others in the vicinity. It is recognized that this lot owner faces a hardship that was not caused by Petitioner. It is also recognized that, pursuant to the stipulation of the parties, there is no intention by any entity to install a community system of sewage disposal. It is further recognized that there are no alternative methods that would seem to be successful in addressing the problem of the treatment of the sewage, as related in the previous findings. On the other hand, the discharge that could be expected from this subject system would bring about a condition in which the effluent presented a health risk to this applicant and other members of the public and has the potential to significantly degrade the ground or surface waters, although this latter circumstance has not been documented on other occasions and was not found to exist in the July, 1987 study commissioned by the Leon County Board of County Commissioners. In that report, it was specifically found that the surface water had not been compromised by the on-site sewage disposal system failures described in the overall report.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying Petitioner's request for variance from permit requirements and permission to install an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I. DONE AND ENTERED this 20th day of November, 1990, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4456 The following discussion is given concerning the proposed facts of the parties: In the discussion of the testimony of Mr. Poole, the relevant portions of that testimony are reflected in the facts found in this recommended order. Under the heading of testimony said to be attributable to Ms. Hegg, at paragraph 1, while it is recognized that a system might be installed that might not call for diversion of storm water onto adjacent neighbors' properties, the problem on site would remain and would be sufficient reason to reject the application. Moreover, it is not clear that it is the intention to install a system that would divert storm water from adjacent properties. Paragraph 2 under this heading is rejected in its notion that storm water would not have an influence on the proposed system. Paragraph 3 is rejected. Paragraphs 4 and 5 do not lead to the conclusion that sufficient unsaturated soils would be available for the treatment of disposed sewage during the wet season, nor does the representation at paragraph 6. Paragraph 7 under that heading is contrary to facts found. The paragraphs under the reference to James Earl Peel, in those five paragraphs, while accurately portraying the opinion of Mr. Peel and Mr. Wood, does not lead to the conclusion that the application should be granted. Under the heading "Rod Moeller" in the first paragraph, the information provided at hearing and under weather reports does not satisfactorily establish what the rainfall circumstance may have been at the subject property 72 hours before January 24, 1990, as referred to in paragraph 1, nor can it be said that the rain experienced in the overall area contemplated by the attached weather report to the argument by Petitioner was a 25-year storm event. The comment at paragraph 3 under this category that the on-site sewage disposal systems in neighboring lots are functioning fine since modifications in the advent of hurricane "Kate" is contrary to facts found. Under the heading "Ray Collins" in paragraph 1, this proposed fact has no relevance in that the question is the appropriate function within Killearn Lakes Unit I, not at an undisclosed site away from that area. Respondent's Facts These facts are subordinate to facts found. Copies furnished to: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rod Moeller, Authorized Representative Mallard Cove Construction 14261 Buckhorn Road Tallahassee, FL 32312 John L. Pearce, Esquire HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A Tallahassee, FL 32399-2949
Findings Of Fact On a site that would abut St. Johns County on two sides, the City proposes to develop as a landfill about 400 of the 880 acres it owns in the southeast corner of Duval County. The proposed southeast landfill is designed to serve the approximately 300,000 people living in Duval County south and east of the St. Johns River, by receiving 1,700 tons of solid waste a day for ten years, 400 or 500 tons a day more than people in that part of the city now generate. Sandhill and Swamp Scattered over the portion of the property proposed for solid waste deposition are cypress marshes and blackgum sloughs isolated from a swamp and from each other by upland pine plantation and sandhills. Except for some 40 acres cut off from the remainder by a fill road, the hardwood swamp covering approximately 265 acres of the City's property is part of the pristine "Durbin Swamp system which is a major wildlife area, including habitat for threatened and endangered species." T. 2820. Durbin Swamp south of J. Turner Butler Boulevard and east of U.S. Highway 1 is "the most valuable wildlife habitat in the area, maybe in the southeastern United States." T.2921, 3058. The City's consultants characterized 64 of the 123 gopher tortoise burrows they found on some 105 acres in the southern part of the site as active. Sherman's fox squirrels feed and nest on the property. Although "very little of the sand hill habitat [remains] in its natural condition on the property," (T. 185) turkey oak, long leaf pine and sand pine communities do survive. Isolated wetlands scattered through the eastern portion of the site have also been timbered, and ditches intersect many of them. St. Regis Paper Company, who owned the land until earlier this decade, "dug a series of canals . . . to drain . . . part of the land ["it was called upper wetlands"] . . . so that the ground could be high enough to raise good grade pine trees." T. 1417. "The isolated wetlands . . . provide habitat diversity for wildlife, a seasonal source of drinking water, possible refuge during forest fires, as well as breeding and forage locations," (T. 1255) according to the City's draft application. "Wildlife noted on the site includes Florida black bear, white-tailed deer, raccoon, armadillo, cottonmouth, river otter, common night-hawk, alligator, yellow bellied sapsucker, turkey, frog, quail, dove and red- shouldered hawk," (T. 1255) also according to the City's draft application. Bobcats are common. According to the St. Johns River Water Management District's chief environmental specialist, "animals that you would find utilizing the uplands . . . would be a range of small rodents [including] mice, rabbits . . . insects, [mostly tree] frogs, toads, snakes [including] black snakes, rat snakes . . . [o]possums . . . pastorine birds, cardinals, bluejays, blackbirds . . . [and] probably some hogs." T.537-8. Wood storks wade and feed in the isolated wetlands on site. Wood stork rookeries have been found five miles to the southeast and seven miles north of the City's property. Bald eagles nest nearby but off site. Eagles used the now abandoned eagle nest on Eagle Nest Island "three-quarters of a mile from this proposed landfill site," (T. 1419) at least as recently as 1983. One or more eagles still perch on a dead cypress limb on the property (T. 2422), if not elsewhere on site. Ospreys, southeastern American kestrels (T.2918) and six or seven species of woodpeckers, including the rare hairy woodpecker (T2914) have also been seen on site. "There are dirt logging roads just as there are in any property in Florida, but not a great number." T. 2751. "Almost all of the pine flatwoods habitat on the site has been replaced with planted pine." T. 184. The property is comparable to the Wacasassa tract in Gilchrist County which is on the Conservation and Recreational Lands list and under consideration for state acquisition because of its "comparatively unaltered nature." T. 2721. In the past, conservation efforts have brought animals to the property for refuge. T. 1420. Listed Species The Florida Game and Freshwater Fish Commission (Game and Fish) lists the gopher tortoise and the Shermans's fox squirrel, said by one witness to be "imminently threatened," (T. 2899) as species of special concern. T. 2875. A species of special concern "is beginning to show a decline and needs to be . . . considered as a target of conservation and if present conditions continue it's going to be listed as threatened." T.2874. Game and Fish lists the Florida black bear, the southeastern American kestrel and the bald eagle as threatened, the same category in which the United States Fish and Wildlife Service (Fish and Wildlife) lists the American alligator. A threatened species is one destined to become endangered "if present trends continue." T.2874. Both Game and Fish and Fish and Wildlife list the wood stork as endangered, and Fish and wildlife lists the bald eagle as endangered. "An endangered animal is one that under present conditions is in danger of becoming extinct in the near future." T.2874. Listed in the Convention on International Trade of Endangered Species are the bobcat and the river otter. By definition, rare animals are not often seen in the wild. The parties stipulated that the staff of CZR, Inc., a consultant engaged by the City, spent an aggregate of 1400 man-hours on the landfill site, of which 429 man-hours were spent on site for the purpose of performing a wildlife survey. T. 2803. Despite their effort and putative expertise, the City's consultants did not see even a single listed animal. This failure contrasts with sightings by hunters and other experts who spent less time on site, and may be attributable to the time of year (two weeks in the fall) the survey was performed (T. 2425-27, 2893, 2899) or to the way in which it was done, (T. 2429, 3067, 3068) which a wildlife ecologist testified rendered it of "trivial value." T. 3079. The study was expedited in anticipation of a hearing date. T. 2426-27. In any case, the survey does not give reasonable assurance that species whose range includes the City's property are not present in suitable habitat on site. T. 2896-97, 3079-80. This is, indeed, the conclusion the City's own experts reached as regards the gopher tortoise itself, because of the clear sign these creatures' burrows give of their use of the property. Similarly, with respect to the Sherman's fox squirrel, although only a single individual was spotted, distinctive nests and piles of pine bracts on site established their presence. Bear tracks corroborate infrequent sightings on the property, as well as south and east of the site. On a large tract of land to the north, bears are fed daily; three or four feed each day. T. 2421. Alligator sign bore witness to the alligator's use of the property, although the only sighting clearly proven at hearing occurred just across the boundary line. Of course, wildlife does not respect legal boundaries. There is no reason not to believe that the red-cockaded woodpeckers, with six active nests within three miles or the Bachman's sparrows heard singing nearby do not frequent the City's property, which offers suitable habitat for both. It is even possible that the Florida panther, common in the area as recently as 30 years ago, may have roamed the site in more recent years in pursuit of deer or feral hogs. Two witnesses swore they had seen Florida panthers within two miles of the site, one only a few months before the hearing, (T. 1362, 1371, 1419), and a third testified he thought a "cat" he had seen two and a half or three years before the hearing just north of the site was a Florida panther. T.2429-32. The Florida Everglades mink, a threatened species according to Game and Fish, has been spotted at least twice in a cypress bog across the street from the City's property, and probably occurs on the property, as well. Not spotted either on the City's property or on adjacent land, the Florida mouse, the eastern indigo snake and the gopher frog are known to make their homes in gopher tortoise burrows. Of these listed commensal species, the indigo snake is particularly likely to inhabit the site. "The blue indigo snake was turned loose on that property in . . . '81 or '82, since it was an endangered species." T. 1420. The site also affords suitable habitat for the long tailed weasel, under review for listing. Game and Fish has listed the Florida mouse and the gopher as species of special concern. Bachman's sparrow is under review for listing. Fish and wildlife views both the red cockaded woodpecker and the Florida panther as endangered, while Game and Fish views the latter as endangered but the former as threatened only. Aquatic or Wetland Dependent An "aquatic and wetland dependent" species is a species that "requires wetlands or aquatic systems to satisfy some critical biological need in its natural life cycle," (T. 524) apart from simply drinking water. "[W]ithout wetlands or aquatic systems, these species would probably be extirpated from the state." Id. The Sherman's fox squirrel, the gopher tortoise, the Florida mouse, the Florida long-tailed weasel, the southeastern kestrel, and Bachman's sparrow are not aquatic or wetland dependent. Because they use watery environments for feeding, reproduction and other purposes, the alligator, the wood stork (the only stork in North America) and the gopher frog are aquatic and wetland dependent. Because "the whole black bear population in our state seems to shift . . . primarily in the fall and winter months, to the wetlands and . . . eat . . . fruit produced in wetland trees," (T. 527) the black bear is deemed wetland dependent. The indigo snake is also so classified because it "seemed to be heavily dependent upon eating frogs." (T. 526). Even though not wetland dependent "historically and naturally," (T. 527) the "less than probably 100 Florida panthers left in the state" are now so viewed because "they have more or less been restricted to the major swamp systems," id., without which they probably would not survive. The contiguous wetlands on site comprise the headwaters of Durbin Creek, which empties into Julington Creek shortly before Julington Creek reaches the St. Johns River. Large scale residential development of lands lying within the watershed of Durbin and Julington Creeks has been proposed. Durbin Creek and the swamp that gives rise to it serve as a "juvenile fish nursery" (T. 2468) for white shrimp, blue crabs, croaker, anchovies, bream, bass, shellfish, bluegill, and sheepshead. Lower dissolved oxygen levels or other stressors in Durbin Creek would decrease populations in fisheries already at carrying capacity, and already threatened by the prospect of overdevelopment. Dredging and Filling The City intends to build a road running east and west between the landfill site and U.S. Highway 1 following, for the most part, an existing dirt logging road, and crossing Old Kings Road, built in 1765 to connect the capital of colonial Georgia with St. Augustine. Turbidity screens and staked hay bales would be used during road construction to protect adjacent waters. After construction, seeding and mulching would stabilize the sloping shoulders of the fill road. In connection with construction of the access road, plans call for filling wetlands contiguous to Durbin Swamp, 2.8 acres within DER's jurisdiction and 3.5 acres within St. Johns River Water Management District's jurisdiction. Fetterbush, gallberry, scrub palmetto, cinnamon fern, bamboo vine and sphagnum moss grow in these contiguous wetlands, under a canopy of slash pine, loblolly bay, cypress and swamp tupelo. The proposed Class III disposal area would lie two hundred feet north of the south property boundary and 600 feet west of the east boundary. Over significant portions of this 88-acre site, fill dirt is to be used to raise the grade, because the land is so low. Enough fill is to be placed in the marshes and sloughs to avoid depositing solid waste in the water. Trucks would haul fill dirt to the eastern part of the site ("the area starting at the northeast corner of the Class III landfill and extending about 300 feet to the west, starting from a point about midway along the eastern margin of the landfill, and extending about 450 or 60 feet to the west, and along the southern portion of the Class III landfill, about . . . 600 feet" T. 1562) and elsewhere on site, smothering isolated wetlands, where more or less healthy vegetation, generally of the kind found in the contiguous wetlands, now grows. The 132-acre Class I disposal area, which would abut the Class III area on the north, would also cover isolated wetlands now on the site. Together with excavation of associated stormwater retention basins, the disposal areas would disturb a total of 46.3 acres of isolated wetlands within the St. Johns River Water Management District's jurisdiction. The St. Johns River Water Management District originally asserted jurisdiction over 48.5 acres of isolated wetlands, City's Exhibit No. 80, but the objectors offered no evidence that staff's subsequent decision that vegetation on one 2.3-acre parcel did not qualify was erroneous. This total does not include isolated wetlands less than half an acre in extent or isolated wetlands lying both within and without the disposal areas which will cease to function as such when truncated by dredging or filling. In this latter category are some ten acres that will not themselves be dredged or filled. T. 2777-8. St. Johns River Water Management District identified 5.3 acres of high quality isolated wetlands with connections off-site that are to be impacted, City's Exhibit No 80, along with another 11.2 acres of "low quality" isolated wetlands. Id. No stormwater retention basin would intrude into DER's jurisdictional wetlands, but approximately nine tenths of an acre falling within the St. Johns River Water Management District's contiguous wetlands boundary would be devoted to stormwater retention basins. Replacement Wetlands To mitigate the planned filling of contiguous wetlands for construction of the access road, the City proposes "to excavate 3.5 acres of nonjurisdictional pine plantation and create a contiguous swamp wetland." City's Exhibit No. 56. Mature dahoon holly, loblolly bay, cypress and gum trees "will be transplanted from on-site [isolated] wetlands proposed for construction impact." Id. A tree spade is to be used to transplant trees with trunks as much as 12 inches in diameter at "breast height" and up to 50 feet tall, along with existing soils, microbial communities and adjacent understory vegetation. The "physical structure of the trees themselves . . . provide a good deal of the habitat." T. 436. Removing mature trees from isolated wetlands and replanting them in created wetlands would, to some extent, mitigate the loss of perches for bald eagles and other birds. Mature trees in the created wetland would be replanted at a density "approximately half that of existing on-site wetlands to be impacted." Id. Only 80 percent of the replantings are to be replaced, if they die; and then only if it is clear within three years that replacement is needed. A six-inch layer of organic soil, to be spread after the trees have been transplanted, would "provide for growth of herbaceous vegetation." Id. The City would monitor the created wetland (part of mitigation area "A") for three years and transplant additional trees, if needed to assure survival of not less than 80 percent of the number of trees originally planted. Of these 3.5 acres, the City has identified 2.8 as specifically intended to mitigate the filling of wetlands within DER's jurisdiction. With respect at least to this portion, the created wetland "will function probably much the same as the 2.8 acres" (T. 2765) to be filled in constructing the access road and "would compensate for the" (T.2765) attendant loss of vegetation. In transplanting mature hardwoods, "[i]t's sort of a physical impossibility to get all the root material . . . [and y]ou also get some loss of branches, limbs and stems just from the physical movement of the tree." T. 2482-83. One reason a wetland "system stays wet . . . is a thick canopy." T.2486. With more sunlight streaming through a sparser canopy, the "vegetation is not going to be the same." T. 2487. "[B]ecause you don't expect the wetlands to function as well as the original wetlands you're replacing, there is a general rule of thumb that . . . you create twice as much wetlands as the wetlands you've destroyed." T. 2488. "A three-to-one ratio would not be unusual for a good mature forested hardwood system." T.467. St. Johns River Water Management District's Applicant's Handbook calls for a ratio between 2:1 and 5:1, but states: "The ratios may also be adjusted when wetlands creation is combined with wetland mitigation proposals such as an open buffer area adjacent to the wetlands, conservation easement, wetland enhancement proposals or alternative mitigation proposals." T. 504. The ratio proposed here is less than one to one. In all, mitigation area A would comprise 11.0 acres of what is now pine plantation. Aside from a .55 acre pond in the middle, mitigation area A would consist of wetlands contiguous to existing wetlands on which three different, if related, vegetative communities are to be planted. In addition, the City proposes to create three different isolated wetland areas, one of which (mitigation area D) it characterizes as "high quality." Six acres of what is now pine plantation would be excavated on the north edge of the property. Using the same, experimental techniques proposed for mitigation area A, cypress trees would be placed on 3.4 acres, and 2.6 acres would be devoted to a combination of loblolly, cypress and dahoon holly. Another 9.8 acres of isolated wetlands would be created within borrow pits, 6.8 acres in borrow area No. 1 (mitigation area B) which would include .55 acres of open water, and 3.0 acres in borrow area No. 2 (mitigation area E.) Just north and east of the truck scales, mitigation area B would receive 200 adult trees per acre planted to the extent they are available on site, or 400 trees per acre planted with nursery stock. The same density is planned for mitigation area E, to be located across the road from stormwater retention basin 4. The City also proposes to remove a segment of a logging road built on fill that now cuts off 40 acres from the remainder of Durbin Creek Swamp. Removal of the fill and revegetation would not only increase the extent of the swamp by 0.3 acres, it would restore historic sheet flow in that part of the swamp. Finally, the City proposes to spread muck, if available, over the shallow, southern part of stormwater retention basin 2 and plant 12 acres of grass ("[w]etland herbaceous species" City's Exhibit No. 80) which, however, the City reserves the right to dredge up "from time to time". Id. p.13. Other Effects, Other Mitigation Building and operating the landfill on the site proposed would displace upland wildlife and fragment largely undisturbed and undeveloped wildlife habitat. Fences along the northern, eastern and southern site boundaries would present a physical barrier. Human activity, particularly daytime traffic on the access road, would also create a "bio-geographical barrier." Developing a landfill at the edge of the swamp amounts to "leapfrogging," instead of expanding existing pockets of industrial or other development. A witness characterized the area to the south of the site as "rural developed"; some 164 people live within a mile of the center of the site. T. 78. But private ranch lands to the north, like undeveloped land to the east, afford good wildlife habitat. Habitat fragmentation divides and isolates animal populations. "Fragmented populations are more susceptible to disease, inbreeding and with time, poaching." T. 2890. The landfill would displace gopher tortoises, their commensals, if any, and other wildlife using sandhill or pine plantation habitat, as well as wildife, including wood storks and other migratory birds, making use of the isolated wetlands that are to be filled over. With the filling of isolated wetlands, migratory birds would lose holly berries and other forage. Filling or excavating acreage at the periphery of the swamp would also destroy habitat and displace wildlife. Wildlife now on site reaching suitable habitat elsewhere will have to compete for limited space against animals that have already established territories. The result should be a net decline in populations. T.2898. Increasingly sequestered, the Durbin Swamp system is already under pressure from urbanization to the north. For animals that remained in the vicinity, development of the landfill would occasion other difficulties. But evidence that landfill noises and odors "would have no discernible impacts to the value of wetlands as habitats for aquatic and wetland dependent species" (T. 528) went unrebutted. A buffer of at least 50 feet would separate contiguous wetlands from stormwater basins and other construction, but this is considerably less than the 528 feet Dr. Harris testified was necessary to avoid "greatly erod[ing] the native faunal diversity of the Durbin Swamp wildlife." T.3073-74. Placement of the landfill on this site would increase the numbers of a half dozen "middle-sized mammal omnivores" (T. 3078) so that gopher tortoises, turkey, quail, "anything that nests on the ground will be subject to the plundering by the enhanced population of raccoons, opossums, gray foxes, red foxes . . . and such." T. 3079. Increased numbers of armadillos would also pose a heightened threat to animals that nest on the ground. Landfill operations can be expected to attract seagulls and birds of other species, including nest predators and the brown-headed cowbird, which takes over other birds' nests to lay its own eggs (T. 3071-2) and would pose a particular threat to Swainson's warbler. It is not clear that any of the mitigation areas the City proposes is intended to replace wood stork feeding habitat that would be lost to dredging and filling. Wood storks feed on dense fish populations in shallow water, when receding water levels make the fish easier to catch. Isolated wetlands on site that have served this function would be lost (T. 2419), although not all of the isolated wetlands to be lost have enough water to support the kind of fish on which wood storks prey. The deep, steep-sided ponds planned for the mitigation areas do not replicate the necessary conditions. Whether birds may safely feed in or drink from untreated stormwater run-off in shallow portions of the retention basins is doubtful. When it rains, particularly the initial flush of run-off would deliver pollutants, including oil, greases and gasoline left by garbage trucks, to the retention basins. T. 1820-1. Removing the fill road and restoring normal flows to the 40-acre patch of the swamp on the other side, as the City proposes, would not add to feeding areas available to wood storks, except for the 0.3-acre roadway itself. The project would disrupt "very superior black bear habitat." T. 3059. Tending to avoid human activity, bears would likely range further east, foregoing foodgathering on site. On the other hand, food or other refuse brought to the landfill might lure bears to their deaths, intentional or accidental. "[C]ollisions with human vehicles," (T. 3062) is the chief cause of black bear mortality in Florida. Bears have been killed in this fashion within a mile of the site, (T. 351 1411-4, 2438) although not during daylight hours when the landfill would be in operation and garbage trucks would travel the access road. Creation of wetlands will not mitigate destruction of upland habitat. On the contrary, additional upland would be taken to create the wetland mitigation areas planned. But the City proposes to give a conservation easement on 129 acres of upland, adjacent to the swamp, that is to remain undeveloped. The upland easement would preclude a host of uses inimical to wildlife, and would mitigate to some extent the loss of wetland habitat for animals which use both uplands and wetlands, like the black bear, even though cut over slash pine plantation is among the very least important or productive wildlife habitats in Florida. The easement would not include sandhill habitat. The City has also undertaken to give a conservation easement covering some 260 acres of wetlands contiguous with Durbin Creek Swamp. This would not, of course, increase the extent of existing wetlands, but it would add a measure of protection for those that survived the project. Perhaps most importantly the wetland conservation easement would preclude expansion of the landfill further into the wetlands, as long as it remained in force. Existing regulatory restrictions on the use of wetlands prevent many uses, even without an easement. Apparently no regulation precludes harvesting bottomland hardwoods, however, so long as no excavation is involved, and vegetation, once severed, is not redeposited on site. But converting deforested areas to pinelands, without a permit from the Army Corps of Engineers would probably not be authorized, under 33 U.S.C. s.1344 (f)(2). See Avoyelles Sportmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983). The City proposes to relocate gopher tortoises and any indigo snakes, gopher frogs or Florida mice that can be found to an unspecified new home off- site. Survival rates for gopher tortoises after similar relocations in the past have ranged between 30 and 100 per cent. By the year 2,000, the St. Johns County gopher tortoise population is predicted to fall by 90 percent, and Duval County is predicted to be devoid of gopher tortoises, even without relocation efforts of the kind proposed. Some or all of the gopher tortoises slated for removal may be descended from those who were brought to the site from Lake City. Perhaps even some who started out in Lake City would themselves make this second exodus to a new promised land. Stormwater Management The site proposed for the southeast landfill does not lie within a basin for which the St. Johns River Water Management District has adopted volumetric requirements. A "set of double [triple (T.1740)] box culverts five feet by eight feet . . . and . . . four other," (T. 425-6), "equalizer culverts," large enough for bears to move through (T. 415) would convey preexisting surface flows. A cross drain in the vicinity of the service plaza would serve the same function. Flood elevations would not increase more than a foot immediately upstream or more than 0.1 feet 500 feet upstream. The access road would not impound surface waters. Exfiltration trenches paralleling the access road "designed based on South Florida's criteria" (T. 1737) would filter contaminants from water running off the road. Within 72 hours of a 24-hour, 25-year return storm, the exfiltration system would be able to treat twice the volume of stormwater that recurrence of such a storm would generate. T. 1743. The scale plaza area where garbage trucks moving east on the access road would be weighed before being directed further down the road to a disposal area, is to be built on an upland portion of the property, and with it a wet detention pond to which surface water from the plaza and associated roadway would drain. Swales and berms would divert surface flow from undeveloped parts of the property that might otherwise reach the detention pond. The interceptor ditch and associated works would reduce by 2.5 hours the time of concentration for runoff from a 202-acre watershed, but cause no other changes in watershed characteristics. A weir would make it possible to regulate overflows and allow detention of run off long enough for biological assimilation of most pollutants. For the 25 year return, 24-hour storm, the pre-development peak rate of discharge (6.3 cubic feet per second) is less than the post-development peak rate without detention (18.4 cubic feet per second) but more than the post- development peak rate of discharge with detention: 3.9 cubic feet per second. An orifice below the weir, with a diameter of 1.5 inches, is designed to discharge less than half the treatment volume (22,088 cubic feet or 2.5 inches times the impervious portion of the area drained) in 64.21 hours. The design meets DER and St. Johns River Water Management District criteria. Portions of stormwater retention basins 1 and 2, situated north of the disposal areas, would lie within the 100-year flood plain. These two retention basins are designed to receive stormwater running off the Class I site or diverted around the site, as is stormwater retention basin 3, while stormwater retention basin 4 is intended to collect stormwater flowing off or around the Class III disposal area. Stormwater retention basins 3 and 4, like the southern area of stormwater retention basin 2, are not to be excavated to a depth of more than five feet below grade, to prevent groundwater from seeping into stormwater retention basins, dewatering the wetlands where it would otherwise emerge. With terraces at 20-foot intervals, to a height of 60 feet above grade for the Class I site and 40 feet above grade for the Class III site, both landfills would resemble Mayan temples, at build out. Ditches around the perimeter of each terrace are designed to convey stormwater to slope drains which would bear water to the level below, eventually to the perimeter ditch on grade, from which it would flow, through box culverts under roads built around the landfill, into the retention ponds. To the extent necessary to prevent groundwater infiltration, the ditches are to be lined. Stormwater retention basin 2 has two discharge structures, while each other basin has a single discharge structure leading to a ditch that would convey stormwater to Durbin Swamp. Perforated pipes, swathed in filter cloth, would be buried under highly permeable sand, along the sides of the retention ponds. Installed above seasonal low groundwater elevations, in order to avoid draining groundwater from the area around the ponds, during dry seasons, (T. 1781) they would have to go below seasonal high groundwater elevations, in order to be low enough to serve as drains for the retention ponds. Ambient groundwater would seep into the pipes, whenever groundwater levels outside the ponds rose above the pipes' elevation. But the pipes would still be able to drain the retention ponds, because of the relatively greater (vis-a-vis soils on site) hydraulic conductivity of the highly permeable sand to be trucked in for use as a filter medium. In time, these side drains or underdrains would clog and require expensive maintenance. But, assuming proper maintenance of the retention pond drains and of the drains that make up the roadway exfiltration system, the landfill and associated development would not flood or dewater wetlands that are not themselves to be dredged or filled. Except what is lost to evaporation, water entering the retention ponds would reach the wetlands, whether through the underdrains, over the weirs and through the conveyance ditches, or by movement underground after seeping through the bottom of the basin. The post-development peak rate of discharge from the area draining into the stormwater retention basins should not exceed pre-development rates for a 24-hour 100 year return storm or any lesser event. Because of roads and other impervious surfaces, a greater volume of surface water should reach the wetlands, causing stages about two inches higher than under pre-development conditions in "a typical summer thunderstorm." T.1782-3. The increase in surface flow corresponds to a decrease in water percolating down into the groundwater, and may result in additional loss to evaporation of water that would otherwise reach wetlands. But any such effect will be slight; surface and groundwater levels and surface water flows will not be adversely affected. T. 1783. Nor will existing surface water storage capabilities be adversely affected, despite the placement of portions of retention basins 1 and 2 within the 100-year flood plain. This encroachment at the very edge of the flood plain would rarely have any effect on surface water flows. Almost all development is to occur outside the ten-year flood plain. The stormwater basins could hold an inch of runoff without discharging water over the weirs. The underdrains, which would, when originally installed, have a hydraulic conductivity of about 130 feet per day, could remove an inch of run-off within approximately 40 hours. On the conservative assumptions that half of a two-foot vadose zone would already be saturated at the time a 24-hour, 25-year return storm dropped an additional 8.9 inches of rain on site, and that soils on site have a porosity of .5, the retention ponds could contain the resultant run-off for treatment, before discharging it first through weirs then through the underdrains. Three surface water monitoring stations are planned. One upstream would make it possible to assess background conditions. Another at the point of discharge from stormwater retention pond 2 would reveal whether the retention ponds and their sidedrains were functioning as intended. A third monitoring station in the southwest corner of the site should give similar information as to the roadside exfiltration system. Hydrogeology Except in the southeastern corner of the City's property, where the ground slopes down to the east, the land the City owns, like the adjacent land to the south owned by the McCormicks, slopes down in a more or less northwesterly direction, falling from 55 feet NGVD on the southern boundary to 15 feet NGVD at the northwest boundary, which intersects an elbow of the swamp. Although groundwater flows east of north under the southeast corner of the property, the flow under the property is generally northwesterly, following the topography. Class II groundwater in the surficial aquifer underlies the property at depths ranging "from almost to land surface to five or 10 feet below." (T. 1517). City's Exhibit No. 161. Groundwater flowing northwesterly crops out in isolated wetlands, evaporates, transpires or discharges into the swamp. To assure that the bottom of each exceeds seasonal high groundwater levels, measured in February of 1987, by the number of inches a 24-hour 25-year return storm would add, fill would be placed under both disposal areas, as needed. Because the Class I solid waste disposal site is to be lined, recharge by rainfall would be precluded there. With a liner intercepting percolating rainwater, groundwater would not attain predevelopment levels. The depression thus induced under the Class I site would more than offset the tendency groundwater under the Class III site would otherwise have to mound up into the bottom layers of solid waste deposited there. Recharge from rainfall (become leachate) would continue at the unlined Class III site; the height of accumulated waste would slow or stop evapotranspiration offsetting percolation there. But groundwater would flow down steeper gradients to lower levels underneath the Class I site (which lies between the Class III site and the wetlands where groundwater discharges) rather than rising into waste disposed of on the Class III site. The horizontal component of flow would continue to exceed the vertical component by several orders of magnitude. Beneath the surficial aquifer, which extends to depths of 50 to 100 feet below ground and consists of sand interspersed with a "matrix of soil, organic materials, clays and silts . . . little layers of clay and hardpan" (T. 1517) lies a continuous, confining layer of gray, sandy material with gravel and shell fragments, 12 to 40 feet thick, blanketing the undulating surface of the Hawthorne formation underneath. "[S]ome 40 percent of the material comprising the Hawthorne formation in this area is clay and the remainder is a mix of sands, silt stone, shell beds and phosphatic sands." (T. 1526) This assures that rainfall or other fluids percolating into the surficial aquifer on site will move horizontally downgradiant, reentering the atmosphere or discharging to the surface, rather than penetrating the thinner aquitard above the Hawthorne formation and sinking another 250 feet or more through the Hawthorne formation itself into the Ocala group and Floridan aquifer below. No subterranean feature in the vicinity permits water in the surficial aquifer to reach the Floridan. No peat, muck or other unstable soils underlie the site. Under 3,000 pounds per square inch, the maximum load anticipated, the ground is not expected to settle more than one inch. The addition of fill dirt does not alter this estimate significantly. Disposal Design The Class III disposal area would not have a liner, a leachate collection system or gas controls. After travelling through soils under the site, leachate from the Class III site would enter the groundwater. The City proposes to train and direct staff, to the end that only yard trash and construction and demolition debris end up in the Class III disposal area, where waste would be deposited directly on fill dirt or naturally occurring soils. No solid waste is to be disposed of within 200 feet of wetlands contiguous to Durbin Swamp lying within DER's jurisdiction. A composite liner of the kind in place at Alachua County's southeast landfill would form the corrugated bottom of the Class I landfill: a 60 mil high density polyethelene layer overlying two six-inch lifts of calcium montmorillonite, a clayey sand that is to be placed on compacted subgrade configured in "a herringbone design with peaks and valleys." T.765 Separating trenches in the valleys, sloping ground would rise, then fall at least two feet for every hundred horizontal feet. Steps would be taken to remove rocks, twigs, roots and the like, before compacting subsoils on site. A machine called a sheepsfoot is to be deployed, once half the montmorillonite has been put down, to pulverize clods and mix the material, in an attempt to assure uniformity within each lift of clayey sand. Other machines would compact each lift to a specified Proctor density. These efforts would not succeed in eliminating all clods or other imperfections, and the sheepsfoot would mix subgrade with the bottom layer of montmorillonite, introducing new impurities. Soils on site have hydraulic conductivity ranging from 1 x 10-3 to 1 x 10-4 centimeters per second. Clayey sand is also subject to desiccation cracking; as it dries out, large cracks appear. On top of this kneaded, compacted and finished 12-inch layer of clayey sand, once it had been inspected to assure the absence of roots, rocks, sticks, glass or other sharp objects, a specialty contractor would unroll strips of unreinforced high density polyethylene. After arranging the panels to minimize seams in the leachate collection trenches, technicians would weld the polyethylene strips to one another. An independent, third-party quality assurance contractor would inspect and test the seams before the synthetic liner was finally positioned, and as flush a fit as possible was achieved. Both the high density polyethylene and the quality assurance program are to meet the requirements of NSF Standard 54 and EPA Publication SW-870, March, 1983. Some wrinkling and occasional flaws in the plastic liner are inevitable. Wrinkling causes ponding, not only of rainwater during construction, but also of leachate, once the landfill is in operation. Tire tracks or other indentations in the montmorillonite layer can also cause ponding. In time, under the growing weight of solid waste, and with heat that biodegradation of the waste would generate, some of the wrinkles might subside, but the liner might also sink into additional depressions. Careful construction could keep ponding to a depth of little more than an inch. T. 2971, 2979. Extrusion welds (when done properly) render the seams stronger than the panels they join. But even if "you are really, really good" (T. 2957) and even when you're careful you get an occasional problem, one or two per acre, no matter how careful you are. And if you're not as careful, you get more, typically something on the order of five holes per acre. T. 2967 Carelessness on one project resulted in as many as 60 flaws per acre. Nondestructive testing methods do not detect all defective welds. T. 2966. Defects may develop after the plastic liner has been inspected. Stress on high density polyethylene associated with "conform[ing] itself to whatever is underneath it" (T. 2962) concentrates in scratches, gouges and crimps to cause "as much as 30 percent" (T. 2964) of the holes in the material. "[T]here is no shortage of scratches on a construction site." T. 2962. Leachate Collection Another high density polyethylene geotextile, chosen for its transmissivity (the geonet), is to be placed on top of the high density polyethylene liner (the geomembrane), where it would act as a synthetic drainage medium. In order to prevent overlying sand's clogging the geonet, compromising its ability to conduct leachate down into the trenches, a third, highly permeable geotextile, "a non-woven needle punched type" (T. 637) (the geofilter) would go directly on top of the geonet. The twelve-inch sand drainage layer blanketing the geofilter would have hydraulic conductivity of 1 x 10-3 centimeters per second, if sufficient quantities of suitable sand could be obtained. (T. 764) Another 12 inches of native soil is to cover the sand drainage layer. While the geofilter and the soil layers above it would parallel the landfill liner on the slopes between trenches, they would form arches over the trenches themselves. Continuing to follow the contours of the montmorillonite, the geomembrane and the geonet would line the trench bottoms. Below these arches, inert drain field rock would fill the lined trenches, supporting one perforated PVC pipe eight inches in diameter in each trench. The Class I landfill is to be built in fourteen 250-foot wide cells, with each cell having two leachate collection pipes on 125-foot centers. Manholes at either end of each leachate collection pipe would allow access, in case unclogging the pipe proved necessary. Longitudinally, the trenches would slope to the north, falling two to 20 feet for every 1,000 horizontal feet. Leachate reaching the trenches would flow along the trench bottoms (or through the pipes) to the manholes on the northern boundary. Also to be made of leachate-impervious PVC, leachate drain pipes, which would not be perforated, would connect all manholes on the northern perimeter. Varying in diameter from eight to twenty inches, depending on the number of manholes they were designed to empty, they would converge at a leachate pumping station north of the perimeter road. T. 590-1. A rupture in one of the single-walled leachate drain pipes could spill massive quantities of leachate on naturally occurring soils. Leachate which reaches the station is to be pumped into a 12,000 gallon storage tank nearby. To be mounted on a concrete slab surrounded by a curb high enough to contain all 12,000 gallons, if the tank failed, the tank would be constructed of high density polyethylene. The plan is to pump leachate from the tank through a four-inch discharge pipe into tanker trucks which would take the leachate to the Buckman wastewater treatment plan for disposal there. During "the maximum leachate production period, when you have 10 cells open," (T.687) an average of 35,000 gallons of leachate a day would require removal for disposal in this fashion. Additional tanks could be built. As a precaution, isolation valves would permit cutting off all flow of leachate to the pump station. In addition, isolation valves would allow cutting off the flow from any of seven pairs of cells (or slowing the flow from all, T. 705) in the event of an abnormal circumstance where leachate production in the facility exceeds the hydraulic capacity of [the] leachate removal system, the pumping station and storage tank and the tanker truck system. T. 591. Isolation berms separate each pair of cells susceptible to being put to use as temporary storage for leachate. The leachate drain pipes themselves afford more than 23,000 gallons of emergency storage. T.703. Ventilation As they decompose, materials to be deposited in the Class I landfill produce methane gas, carbon dioxide, and other, malodorous gases. Collection pipes with eight-inch diameters, running horizontally on 150-foot centers in the second and fifth lifts would allow gas to escape at either end, on the north and south sides of the landfill. This would prevent methane's building up and exploding or catching fire. By assuring their gradual release, it should also minimize the impact of foul smelling gases, which, in any event, are generally undetectable at a distance of more than 1,000 feet. But specific condition eight of the proposed landfill permit requires that the passive system be converted to an active system, if necessary, using vacuum suction and flaring. GIGO Although there "is not much industry in the southeast portion of Duval County," (T. 953) sewage sludges and other industrial wastes "except any hazardous waste as defined in the Federal Register" (T. 947) would be accepted for disposal at the Class I facility, if properly manifested. The proposed southeast landfill would receive waste that would otherwise have gone to the unlined east landfill. Household waste contains toxic materials. Tests of leachate generated in other lined landfills from which hazardous wastes are excluded have demonstrated the presence of some 30 metals and 56 organic compounds. City's Exhibit No. 89. Rainfall percolating through (and moisture already present in) waste deposited at the proposed Class I facility can be expected to leach the same array of substances from materials deposited there. Judging from experience elsewhere, leachate from the Class I facility would contain 13 or 14 (if 4-methyl phenol is included) substances in concentrations in excess of governmental standards or health-based criteria identified by a toxicologist engaged by the City. City's Exhibit No. 90. Among these would be methylene chloride, trichloroethylene, tetrachloroethylene and benzene, (T. 1478) as to which "the current regulatory policy is that it is possible for as little as one molecule . . . to act as . . . a carcinogenic initiator . . . [so] that there is no real threshold." T. 1447. Maximum concentrations would exceed those Florida prescribes as primary drinking water standards for titanium threefold, for benzene fivefold, for chromium more than fivefold, for sodium approximately 16-fold, for manganese 68- fold, for iron 280-fold, and for methyl ethyl ketone almost 130-fold. City's Exhibit No. 90. Methylene chloride would occur in the leachate in concentrations 39 times greater than the "USEPA proposed Preliminary Protective Concentration Limits." Id. Only yard trash "soils/land clearing waste, waste from landscapers" (T.956) and construction and demolition debris, "clean debris, inert materials, construction and demolition wastes that are inert, roofing materials," id., and the like, not mixed either with industrial or with regular household garbage, would be accepted for disposal in the Class III facility. Unless these materials are adulterated, they are "easy to bio-degrade . . . [or] are insoluble," (T. 1923) and rainwater percolating through them should yield a leachate with "neutral pH . . . low to moderate [biological oxygen demand] . . . [and] metals [if any] . . . below detection limits or background conditions." T.1923. But "some materials get in" (T. 2106) despite efforts to exclude them. "Demolition debris can have oiled floors and creosoted pilings as part and parcel of the structure." T. 3008. Old paint contains lead and cadmium. Debris from old houses can include rat poisons. Grass clippings "could contain small amounts of herbicides and pesticides." T.2101. In fact, "it's not unusual for yard waste to be very rich in biocides." T. 3009. Such chemicals are used in Jacksonville. When autopsies of seagulls found at the Girvin Road landfill revealed traces of diazanon, tests of water taken from "the stormwater ponds in the subdivision across the street" (T.990) showed diazanon was present there. Bioassays the DER runs on effluent from the City's Buckman wastewater treatment plant regularly report toxicity in excess of allowable limits (T.1877-8) and the EPA has "identified malathion and diazanon as the toxicants," (T. 1881) which are killing at least one species of flea in certain standard laboratory tests performed on the effluent. Leachate Leakage The composite liner would not keep all leachate generated in the Class I landfill from reaching the naturally occurring soils underneath, and eventually the groundwater under the site. Even under normal operating conditions, and even on the City's optimistic assumption that it can achieve a permeability of 1 x 10-7 centimeters per second, thousands of gallons of leachate a year would escape through flaws in the liner while the landfill was in operation. If leachate drain pipes burst or torrential rains required backing leachate up in the cells, thousands of gallons a day could leak. If two lifts of clayey sand achieve a permeability no lower than 1 x 10-5 centimeters per second, millions of gallons of leachate would enter the groundwater over the ten-year active life of the landfill, even without burst pipes or extraordinary precipitation. Once the Class I landfill attained the design height, it would be capped with impermeable materials to minimize leachate generation. As with the liner underneath, the impermeable cap would be covered with sand to facilitate drainage. Vegetation would hold the drainage soil in place. Closure plans have already been drawn, but they are subject to revision and require DER approval before implementation. If necessary, side slopes could be lined to prevent leachate seepage there. Closure would reduce, but would not end, leachate production and leakage. Virtually impermeable to water, high density polyethylene is highly permeable to certain permeants, including some that occur in landfill leachate. Leachate constituents known as "aromatic hydrocarbons" move "right on through" (T. 3017) high density polyethylene. To some extent, the montmorillonite component of the liner under the Class I area would impede these materials' movement into naturally occurring soils. The evidence did not quantify the montmorillonite's efficacy in this regard, but the City's expert's testimony that leakage of this kind would be "insignificant" (T. 830) went unrebutted. Permeation aside, the rate at which leachate leaks depends on the nature, number and size of flaws in the synthetic liner, the height and duration of the leachate head above the defects, and the transmissivity of what is underneath. Here transmissivity turns both on the hydraulic conductivity of the clayey sand in the vicinity and on the extent of air spaces between the clayey sand and the overlying high density polyethylene. Sand grains cause microscopic spaces, while imperfections in the montmorillonite layer and wrinkling of the polyethylene cause larger spaces. Leachate leaking into a space between the geomembrane and the soil spreads over a larger area before penetrating the clayey soil, in correspondingly larger volumes. Calculations predicated on the transmissivity characteristics of the geonet and the sand layer above it demonstrate a theoretical leachate flow over the liner so rapid that leachate would never accumulate on the geomembrane to a depth of as much as a tenth of an inch. But these calculations assume no ponding behind wrinkles in the synthetic liner, or any other impediment to the flow of leachate. Especially since holes in liners are likely to occur near wrinkles (because stresses are greater there) a more realistic assumption, for calculating leachate leakage rates, is a head of one inch, "the smallest practical hydraulic head you can achieve." T. 2994. On the twelfth day of hearing, when St. Johns County's liner expert testified that a six-inch layer of the montmorillonite might result in permeability as high as 5 x 10-4 centimeters per second, the City had not yet amended its application to increase the thickness of the clayey sand layer from six inches to twelve. The City's proposal now calls for two lifts of a 20 percent clayey sand with a saturated hydraulic conductivity in situ of 1 x 10-7 centimeters per second. This can be achieved, if at all, only with material that laboratory tests indicate has hydraulic conductivity of 1 x 10-9 centimeters per second or less. "[I]f you put down clay that the lab says has a permeability of 10 to the minus 7 centimeters per second, . . . when you put it down in the field you get from one to two orders of magnitude greater permeability than that. . . . related to how thick it is." T. 2988. Even a three-foot liner comprised of six lifts ends up with conductivity ten times greater than the same material under laboratory conditions. Mr. Deans, who designed the liner for the City, testified that a permeability of 1 x 10-7 centimeters per second was "readily achievable" even with six inches of clayey sand, but he had never designed a liner before, and his testimony in this regard has not been credited. To judge from its eleventh- hour amendment, the City did not believe it, either. Only two lifts are to comprise the clayey sand layer. No study of a clayey sand layer as thin as 12 inches has found hydraulic conductivity of less than 1 x 10-5 centimeters per second. Three lifts are necessary to create an effective barrier. "[Y]ou need at least three lifts to get the middle one hopefully working right." T. 2987. "[E]ngineers believe that the bottom layer gets fouled, the top layer cracks and has problems. Your best chance is the in between layers. You need at least three layers, and they would rather have four to be reasonable, and EPA says six." Id. Studies of twelve-inch liners put down in two lifts ("[t]he thinnest one we found anybody had ever studied" T. 2980) showed them to be "inadequate." T. 2987. With an inch of head, assuming defects with an average area of 1 x 10-5 square meters, an assumption with which all the experts seemed comfortable (the City's expert assumed larger holes), the published EPA formula yields a per defect leakage rate of 6.7598 x 10-11 cubic meters per second, assuming hydraulic conductivity for the montmorillonite layer of 1 x 10-7 centimeters per second. But plans to use only two lifts to form a 12-inch layer do not give reasonable assurance of vertical hydraulic conductivity that low. Mr. Coram's testimony to the contrary, expressly predicated on reports of laboratory tests on samples, did not address the evidence that laboratory tests do not tell the whole story, in the case of a thin layer of clayey sand compromised not only by inherent imperfections, but also by highly permeable subgrade soils, kneaded into it by the sheepsfoot. Because "clods are broken down in the laboratory and stones and cobbles are screened from the sample . . . the effects of both are not accounted for in permeability tests on laboratory compacted samples." City's Exhibit No. 190. Substituting a hydraulic conductivity of 1 x 10-5 centimeters per second, the EPA formula yields a leakage rate between 57 and 58 times greater: 3.8898 x 10-9 cubic meters per second. Although the EPA's most recently published leak rate formula makes no allowance for less than an ideal fit between the components of a composite liner, City's Exhibit No. 190, the author of the EPA formula, who testified for St. Johns County, subscribed to modifications to the formula developed to take this factor into account. DER's Exhibit No. 35. The montmorillonite layer's hydraulic conductivity is an unrealistically low measure of the transmissivity of the medium underneath the polyethylene. Using it for this purpose, without adjustment, ignores inevitable, intervening air spaces. Perfect contact between a synthetic liner and the soil it overlies cannot be accomplished, even in a laboratory setting. On a project of the kind proposed, contact would range from good, where the relatively larger size of sand grains in the clayey mix creates air spaces, to poor, where wrinkles (left in to avoid the weakening effects of stretching the material) cause much larger air spaces. No expert found fault with the more recent formulae (Bonaparte/Giroud) set out in DER's Exhibit No. 35, and none quarreled with the proposition that the published EPA formula made unrealistic assumptions about the contact between polyethylene and clayey sand. The Bonaparte/Giroud formula that assumes good contact yields a leakage rate of 1.6090 x 10-8 cubic meters per second per defect, a little more than four times what the EPA formula predicts for an ideal fit, assuming an inch of head and vertical hydraulic conductivity for montmorillonite in situ of 1 x 10-5 centimeters per second. Assuming poor contact, without varying any other assumptions, yields a leakage rate approximately 5.5 times greater: 8.8115 x 10-8 cubic meters per second. In its proposed recommended order, at page 35, DER accepts, at least for purposes of argument, the proposition that contact between soil and geomembrane would be poor in places, and calculates a leachate leakage rate of 5.45 x 10-3 gallons per day (2.3887 x 10-10 cubic meters per second per defect.) But this assumes that "the permeability of the City's clay liner will be 1 x 10- 7 cm per second and the maximum head over liner will be 0.062 inches." The evidence showed that the maximum head could not be kept below one inch, and did not give reasonable assurances that two lifts would result in vertical hydraulic conductivity of 1 x 10-7 centimeters per second for the clayey layer. Substituting an inch for .062 inches gives a rate of 2.9177 x 10-9 cubic meters per second. Substituting 1 x 10-6 for 1 x 10-7 and an inch for 0.062 inches, the leakage rate becomes 1.6034 x 10-8 cubic meters per second. Groundwater Contamination Uncontroverted expert opinion put the flow of groundwater under the Class I disposal area at 0.063 cubic feet or 0.47 gallons per day (2.0592 x 10-8 cubic meters per second) through a hypothetical square or cube one foot on a side. Except under unusual conditions, leachate leaking from the Class I facility would, before entering the groundwater, pass through approximately a foot of fill dirt or naturally occurring soils, which consist in large part (92 to 99 percent) of relatively inert, quartz sand. The presence of organic materials, however small the quantities, raises the prospect of adsorption and other chemical reactions, before steady state is attained. Physically, the soil would disperse the leachate, diminishing concentrations of leachate constituents entering groundwater. After such attenuation as the soil afforded, leachate would enter the groundwater, which would dilute and further disperse it, although not nearly as dramatically as the City's toxicologist testified. This witness assumed uniform mixing, rather than the discrete plume which persons with greater expertise in groundwater contamination convincingly predicted. By using the rate of "groundwater flow beneath a defect and the rate of leakage through that defect . . . [he] c[a]me up with a volume to volume dilution factor to identify a concentration in the groundwater." T. 1214. Because Dr. Jones took an unrealistically low leakage rate as a starting point, he predicted an unrealistically low concentration of one part leachate to 4,400 parts groundwater, inside a cubic foot immediately below each leak. Concentrations vary directly with the leakage rate per defect. T. 1224. The formula that assumes good, but not ideal, contact between liner components yields a leakage rate per defect of 1.609 x 10-8 cubic meters per second, if the layer of clayey sand has hydraulic conductivity of 1 x 10-5 centimeters per second. Substituting this leakage rate, the City witness' methodology yields a dilution ratio of 2.0592 parts groundwater to 1.609 parts leachate, or 1.2798:1, more than a hundred times less than the 130:1 dilution ratio that the City concedes is the minimum it must prove, at the edge of the zone of discharge. See Respondent City of Jacksonville's Motion to Strike St. Johns County's Memorandum Concerning Leachate Rates, p. 5. Substituting the coefficient for poor contact, the ratio in the hypothetical cube under the landfill becomes a paltry 2.0592 parts groundwater to 8.8115 parts leachate or .2337:1. Using Dr. Jones' methodology, a leakage rate of 1.6034 x 10-8 cubic meters per second per defect would result in leachate concentrations in groundwater of one part leachate to 1.2483 parts groundwater. Substituting a rate of 2.9177 x 10-9 cubic meters per second per defect yields a ratio of 2.0592 parts groundwater to .29177 parts leachate, or one part leachate to 7.0576 parts ground water. Even if the contact between geomembrane and montmorillonite were uniformly good and the clayey sand layer had a permeability of 1 x 10-7 centimeters per second at every point, a dilution ratio of only 37.4444:1 would result. In 132 acres of high density polyethylene, the evidence showed that 660 flaws could reasonably be anticipated, and that 132 flaws were absolutely unavoidable. Methylene chloride would end up in the groundwater in proscribed, carcinogenic concentrations as far away as 20 feet from many leaks within 90 days. Under some leaks, perhaps all, benzene, a proven human carcinogen, would also occur in prohibited concentrations. As leachate plumes dispersed, concentrations would diminish, eventually to levels at which they pose "potentially acceptable" (T. 1475) risks even in the case of "a 70-year water consumption of two liters of water per day by a 70-kilogram adult." T. 1217. No evidence suggested that they would remain in concentrations above these levels by the time they reached the edge of the zone of discharge. City's Exhibit No. 193, which uses a leakage rate much lower than the range of leakage rates likely to occur, if the landfill is built, predicts concentrations of various leachate constituents at the edge of the zone of discharge, assuming a leak at the edge of the disposal area. Multiplying predicted concentrations by quotients, obtained dividing likely leakage rates by the assumed rate, suggests carcinogenic leachate constituents would not occur in prohibited concentrations at the edge of the zone of discharge. But extrapolating in this fashion also suggests that violations may occur outside the zone of discharge, absent attenuation in the vadose zone, in the event of a leak at the edge of the Class I disposal area, for iron, manganese and methyl ethyl ketone. Groundwater Monitoring The City proposes to place monitoring wells at intervals of 250 to 500 feet around the Class I and Class III disposal sites. Some 25 shallow monitoring wells would be located 50 to 100 feet from the deposition areas, within the zone of discharge. In addition, seven clusters, each consisting of three wells screened at different depths, would punctuate the boundary of the zone of discharge. A cluster of wells upgradient would make it possible to monitor background conditions. With two-inch diameters and ten-foot screens, each well would receive a flow of less than a gallon a day. The contaminant plume from the Class III landfill would be large enough to be detected readily in samples drawn from a number of wells. But there was testimony that the plume, even from a 10-foot wide leak at the edge of the Class I disposal area, could pass between two wells 500 feet apart, undetected. Rather than a single large leak, moreover, the experts predict hundreds of small leaks in the Class I disposal area liner. The assumption is that flaws in the geomembrane would have an area of only one tenth of a square centimeter, on average. Any one of the plumes emanating from such a leak could easily pass undetected through a 500-foot gap between monitoring wells. The monitoring plan apparently relies on the great number of leaks expected. But even if samples from a monitoring well revealed a leak, the magnitude of hundreds of other leaks would not be disclosed. Well Contrived After the City filed its application for a permit to construct a landfill, but before DER had issued its notice of intent to grant the application, four wells were put in on the McCormick property, within three feet of the southern boundary of the City's property, and within 205 feet of the proposed Class III disposal area. The wells are more than 500 feet from the lined, Class I disposal area. Spaced at 1,000-foot intervals, within a 125- foot-wide utility easement in favor of the City of Jacksonville Beach, three of the wells are 25 feet deep and one is 28 feet deep. McCormicks' Exhibit No. 7. Each consists of a length of PVC pipe, 1 1/4" in diameter, leading to a red pitcher pump mounted on a wooden platform supported by four fence posts. City's Exhibit No. 194. Pumps of this kind must "periodically be pumped and primed or they have to periodically be taken apart and have the internal seals and leather valves replaced." T.2005. On April 7, 1988, the St. Johns River Water Management District issued a warning notice to "Haden McCormick" alleging that the wells had not been grouted, had been dug without necessary permits, and had not been the subject of required well completion reports. The next day, the St. Johns County Environmental Protection Board, apparently in response to applications inspired by the warning notice, issued a permit for each well designating the "usage" of each as irrigation. McCormicks' Exhibit No. 7. Well completion reports dated April 14, 1988, reported that the wells had been grouted. McCormicks' Exhibit No. 3. Asked the purpose of the wells in a deposition on April 25, 1988, J. T. McCormick said, "We need to monitor what [the landfill is] doing . . . [W]e need to . . . prepare ourselves for having people live in this area, to occupy it, to monitor it." T. 2227-8 A week earlier J. C. Williamson, Jr. had requested on behalf of B.B. McCormick and Sons, Inc. that the St. Johns County Environmental Protection Board amend the permits to show well usage as "Private Potable" instead of "Irrigation". This request was granted on April 27, 1988. McCormicks' Exhibit No. 2. On May 2, 1988, St. Johns River Water Management District's chief hydrologist wrote a lawyer for the McCormicks that "the completion reports submitted by a licensed driller, and the St. Johns County permits fulfill the requirements of the District." McCormicks' Exhibit No. 1. Analysis of samples of water taken from the wells on February 27 and 28, 1989, revealed total coliform levels acceptable for private wells. John Haydon McCormick explained the decision to put the wells in: [D]uring that week the City had filed their application with the DER which, in a sense, fixed their design . . . and when we became aware that this Class III landfill was as close as it is to our border, we became concerned about the future use of potable drinking water, and after consulting with counsel we were informed that we could legally install wells along that border. T. 2242. No owner of the property where the wells are located lives on the property nor, as far as the record shows, has an owner or anybody who does live on the property ever drunk water from the wells. About a half mile from the City's property are two other wells near a house on the McCormick property. When an owner's son drank water from one or more of the wells, as recently as the fall of 1988, he had to take water to the site with him in order to do it. The hand pumps require priming and nobody has bothered to store water near them for that purpose. On February 26, 1989, when the City's expert arrived for "splitting samples to submit to different laboratories," (T.1007) The "pumps were in a 20-gallon washtub in the back of . . . one of Mr. McCormick's employee's trucks. They were all removed from the well heads . . . [apparently] being soaked to generally recondition the seals in the pumps and to sanitize the pumps." T.2008 Two "of the old leather seals from the pumps [were] on the ground." T.2009. Within the shallow aquifer, groundwater flows from the wells northerly underneath the proposed Class III disposal area in the direction of Durbin Swamp. Use of the four existing wells "would in no way modify the groundwater flow system." T. 2045. But a well or wells could be so constructed on the McCormick property that continuously pumping from them would reverse some of the groundwater flow under the proposed Class III disposal area, to the extent that water flowing from beneath the Class III disposal area could be drawn from one of the existing wells along the McCormick boundary. T. 2075-80. Nor would consumptive use permits be necessary to dig wells which could cause such a change in groundwater flows. T. 2075. When the City discovered the wells abutting the southern boundary of its property, it did not direct its engineers to alter the design of the landfill to preclude solid waste disposal within 500 feet of the wells. The total project cost, excluding legal fees, is estimated in the neighborhood of $46,000,000. Redrawing the plans now to reduce the size of the Class III disposal area, without altering the size of the Class I disposal area, would take two to three months, and cost approximately $100,000. This approach would require reducing the capacity of the Class III area from 4.1 million cubic yards to 2.5 million cubic yards and, unless construction debris, which can be disposed of without a DER permit, were diverted elsewhere, its useful life from about ten years to about six years. Tipping fees would have to be higher "to recover the capital fixed costs over fewer tons." (T. 2208) Increased design costs alone would require recouping an additional 4 cents per cubic yard (more considering the time value of money) from tipping fees for Class III debris. Operations would be less efficient and presumably more expensive. T. 2207. Alternatively, the entire facility could be redesigned to achieve the same capacity and useful life as now contemplated. Such a redesign would require four to six months' work and cost approximately $250,000. Recovering this cost through increased tipping fees for Class III wastes would add slightly more than 6 cents a cubic yard (again ignoring the time value of money.) Alternative sites for disposal of Class III waste are available to the City. Indeed the site for which the City now seeks a permit was not even among the ten sites originally considered for the project. T. 2224-5. Decreased transportation costs to another site closer to the source of such waste might more than offset increased tipping fees. But separate facilities could create other problems. Ms. Nogas explained: From an operations standpoint . . .If I run out of Class III area and . . . site a separate Class III area somewhere else, if I had a truck coming to that facility and he really should have been in a Class I area, and I say "No, go out the gate and go five miles down the road . . .[to the] Class I facility," . . . I have a much better chance of . . . him never showing up at my Class I facility. T 2208-9. On the other hand, when asked about placing a Class III facility elsewhere in Duval County, Ms. Nogas, reiterating an earlier statement, testified, "[I]f that were what we had to go to, I would have no operational problems with it." T. 221. Mr. Wells' testimony that there "are 16,000 acres of less environmentally flawed acres seven to 12 miles from the generating centroid accessible from four-lane roads and not near residential or commercial properties," (T. 1248) and that the proposed site "is the furtherest site from the generating centroid, 21 and three-quarters miles to the dump site, and will cost taxpayers an extra $3 million to $5 million a year in longer haul time" (T. 1247) was received on the issue of the decisionmakers' credibility only.
Recommendation It is, accordingly, RECOMMENDED: That DER deny the City's request for variance. That DER deny the City's application for a permit to construct a landfill. That DER deny the City's application for a dredge and fill permit. That DER grant the City's application for a permit for management and storage of surface waters, on conditions proposed in the intent to issue, unless modified by agreement of all parties. DONE AND ENTERED this 16th day of October, 1989, in Tallahassee, Leon County, Florida. Robert T. Benton, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the division of Administrative Hearings this 16th day of October, 1989. APPENDIX A Petitioner St. Johns County's proposed findings of fact Nos. 1-4, 6, 10-12, 14, 16, 18, 21,23, 24-28, 33, 35, 37, 38, 41-45, 47-48, the first sentence of No. 51, Nos. 52-56, 57 except for the first sentence, which is rejected, 58, 59, 62, 64, 66, 68-74, 95-103, 106-109, 111- 116, 118, 131, 132, 133 except for subpart 7, 134, 136 and 137 have been adopted, in substance, insofar as material. With respect to petitioner St. Johns County's proposed finding of fact No. 5, and the second sentence of petitioner St. Johns County's proposed finding of fact No. 51, the design rate is not the same as the current rate of deposition. Petitioner St. Johns County's proposed findings of fact Nos. 7, 8, 9, 13, 15, 17, 22, 75, 110 and 138 relate to subordinate matters. Petitioner St. Johns County's proposed finding of fact No. 19 accurately recites the testimony. Petitioner St. Johns County's proposed finding of fact No. 20 is immaterial. With respect to petitioner St. Johns County's proposed finding of fact No. 29, the City's evidence that leakage of this kind was insignificant went unrebutted. Petitioner St. Johns County's proposed findings of fact Nos. 32 and 120-123 are immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 30, the City's estimates were unreasonably low. With respect to petitioner St. Johns County's proposed finding of fact No. 31, the evidence showed that nine gallons a day was at the upper limit, not that it would actually occur. With respect to petitioner St. Johns County's proposed finding of fact No. 34, at least 13 substances occur in concentrations that exceed health-based standards. Petitioner St. Johns County's proposed findings of fact Nos. 36 and 63, 117, 119 and 135 are proposed conclusions of law. With respect to petitioner St. Johns County's proposed finding of fact No. 39, the probability of a leak on the edge of the disposal area was not established. With respect to petitioner St. Johns County's proposed finding of fact No. 40, the evidence did not show that when "two or more toxic substances are combined" they necessarily have synergistic impacts. With respect to petitioner St. Johns County's proposed finding of fact No. 46, the City's assumption of no attenuation was an appropriately conservative approach that is not inconsistent with the City's unrefuted testimony that attenuation would occur. With respect to petitioner St. Johns County's proposed finding of fact No. 49, the evidence did not prove that the City would allow four feet of leachate to stand on the liner. Petitioner St. Johns County's proposed findings of fact Nos. 50 and 60 immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 61, the evidence did not establish the contentions following the clause ending "and into Durbin Creek,". With respect to petitioner St. Johns County's proposed findings of fact Nos. 65 and 67, the McCormick wells have served ornamental and talismanic purposes, but they were not shown to be potable water supply wells, within the meaning of the rule. At the time of hearing the pumps did not function and were not mounted on the wells. Petitioner St. Johns County's proposed finding of fact No. 76 has been adopted, in substance, insofar as material, except that there was at least one effort to collect toxic wastes in Jacksonville. With respect to petitioner St. Johns County's proposed findings of fact Nos. 77 through 94, proposed permit conditions are not proposed findings of fact. With respect to petitioner St. Johns County's proposed finding of fact No. 124, the evidence was clear that more wetlands were to be destroyed than were to be created. Petitioner St. Johns County's proposed finding of fact No. 125 is rejected as against the weight of the evidence. With respect to petitioner St. Johns County's proposed findings of fact Nos. 126, 127 and 128, mitigation , particularly as regards the wood stork, if the landfill is built. Petitioner St. Johns County's proposed finding of fact No. 129, Durbin Creek enters Julington Creek, shortly before the latter reaches the river. Findings of fact proposed by petitioners J.T. McCormick and the Estate of Benjamin R. McCormick (McCormicks) Nos. 1-4, 6-10, 13, 15-17, 20, 21 and 23 have been adopted, in substance, insofar as material. With respect to McCormicks' proposed finding of fact No. 5, a preponderance of the credible evidence did not establish that the wells would be used to supply potable water in the future, even if the pumps are repaired to make it possible. Nor did the evidence establish any such authentic, "non-forensic," use in the past. With respect to McCormicks' proposed finding of fact No. 11, evidence was adduced that other sites had been considered by engineers the City engaged. T. 2224-5. With respect to McCormicks' proposed finding of fact No. 12, testimony put the delay at two to three months. T. 2139. The City could have avoided this delay. McCormicks' proposed finding of fact No. 14 has been adopted, in substance, insofar as material, except that the proportion of the Class III waste stream construction and demolition debris comprises is not stated at T. 2149. With respect to McCormicks' proposed findings of fact Nos. 18 and 19, the four and six cents per ton computations ignore the time value of money, among other things. McCormicks' proposed finding of fact No. 22 is immaterial. McCormicks' proposed finding of fact No. 24 is properly a proposed conclusion of law. Findings of fact proposed by Florida Wildlife Federation, Inc., St. Johns County Audubon Society, Sierra Club, Inc., Coastal Environmental Society and River Systems Preservation, Inc. came in two unnumbered installments. Findings of fact have addressed the substance of each. Without numbering, it is difficult to treat the material. Petitioner STOP's proposed findings of fact Nos. 5-7, 9-10, 12-18, 20, 22- 24, 26-27, 29, 32-47, 49, 50, 52, 55-57, 59-60, 62, 63, 66, 67, 69, 70, 72 and 73 have been adopted, in substance, insofar as material. Petitioner STOP's proposed findings of fact Nos. 1-4, 30, 31, 65, 71, 75 and 76 are properly proposed conclusions of law in part and relate otherwise to DER's preliminary analysis, which is technically immaterial. With respect to petitioner STOP's proposed findings of fact Nos. 8 and 58, Mr. Kappes said he had seen alligator on site but, when asked for specifics, testified to tracks they had left in the southeast corner of the site. Equally ambiguously, the City stated in its draft application that alligator had been "noted" on the property. The evidence did not show that ospreys are protected or listed in Duval County. Petitioner STOP's proposed findings of fact Nos. 11 and 74 relate to subordinate matters. With respect to petitioner STOP's proposed finding of fact No. 19, the inference that all commensals is present is problematic here, since the gopher tortoises were relocated by man from a site many miles away. With respect to petitioner STOP's proposed finding of fact No. 21, 80 to 82 of 105.7 acres of gopher tortoise habitat would be destroyed. Petitioner STOP's proposed finding of fact No. 25 is immaterial to this application. With respect to petitioner STOP's proposed finding of fact No. 28, Mr. Wiley so testified. With respect to petitioner STOP's proposed findings of fact Nos. 48, 51 and 64, although the conservation easement on uplands would not result in additional habitat, it would preclude further diminution. With respect to petitioner STOP's proposed findings of fact Nos. 53 and 54, no eagles are currently nesting on site, and Eagle Nest Island, where eagles nested until 1983, is off site. With respect to petitioner STOP's proposed finding of fact No. 61, the evidence did not establish that Mr. Kappes saw the red-cockaded woodpecker on site, even though he found six active nests within three miles of the site. With respect to petitioner STOP's proposed finding of fact No. 68, Dr. White so testified. DER's proposed findings of fact Nos. 1-9, 11-15, 17, 24, 26, 33, 37, 39, 41-45, the first three sentences of No. 50, Nos. 52-56, 62-64, 66, 67, except as regards inherent legislative facts, 70-87, 89-92 and 95 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 10, 0.9 acres of wetlands contiguous to Durbin Swamp and within the jurisdiction of the St. Johns River Water Management District would be used for a storm water retention basin. DER's proposed findings of fact Nos. 18 and 20 have been adopted, in substance, except that these steps do not ensure or guarantee a quick return of water quality functions. DER's proposed findings of fact Nos. 21, 32, 35, the last sentence of No. 50, Nos. 51, 88 have been rejected as against the weight of evidence. With respect to DER's proposed findings of fact Nos. 22 and 28, mitigation areas with deep ponds in the middle will permit fish to avoid the conditions under which wood storks feed. With respect to DER's proposed finding of fact No. 23, the steep sided ponds, sparser canopies and lesser extent of created isolated wetlands offset their "higher quality." With respect to DER's proposed finding of fact No. 25, the mitigation proposed does not amount to a one to one ratio. While significant, the easements preserve the status quo and do not compensate for lost wetland functions. With respect to DER's proposed finding of fact No. 27, the evidence suggested no reason why bears would not forage in isolated, as well as contiguous wetlands. With respect to DER's proposed finding of fact No. 29, to the extent possible, existing trees would be transplanted; if they all survived, the number of perches would be undiminished, except for branches broken in the process. With respect to DER's proposed finding of fact No. 30, sightings nearby and habitat on site amount to evidence of use of the site. As regards the indigo snake, testimony that these animals were introduced to the site was uncontroverted. With respect to DER's proposed finding of fact No. 31, alligator tracks were found in the southeastern part of the site. With respect to DER's proposed finding of fact No. 34, no southeastern kestrel nests were found on site. With respect to DER's proposed finding of fact No. 36, it is not in the public interest to issue a permit for a lined landfill that would cause pollution in violation of DER's water quality standards. If a landfill were properly permitted, it would be in the public interest to have access. With respect to DER's proposed finding of fact No. 38, the first sentence (which seems to contradict the fourth) has been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 40, there was no evidence of cumulative impacts to Durbin Swamp, as opposed to Durbin and Julington Creeks. With respect to DER's proposed findings of fact Nos. 46-48, the clayey sand, placed in two six-inch lifts, would have much greater permeability as a unit than samples of the same material screened for certain imperfections and tested in the laboratory. In the field, it would not be possible to remove all clods and other materials that make for greater vertical hydraulic conductivity of the unit. Subgrade mixing would occur, in putting down the first of the two lifts. A 12-inch layer would be many more times transmissive than a liner of the same material put down in six six-inch lifts to attain the three feet DER requires, when no synthetic liner is used. Mr. Fluet did not testify that a 12-inch layer would achieve a permeability of 1 x 10-7 centimeters per second. He testified that nobody who had studied 12-inch layers had reported permeability of less than 1 x 10-5 centimeters per second for a clayey layer of that thickness. With respect to DER's proposed finding of fact No. 49, the geomembrane is subject to the effects of pressure and temperature variation would contribute to wrinkling. With respect to DER's proposed finding of fact No. 57, leachate leakage would diminish after closure, but would not stop altogether. With respect to DER's proposed findings of fact Nos. 59 and 60, the working hypothesis is that even a single molecule of certain leachate constituents may initiate cancer, although concentrations below the levels identified are said to pose no more than an acceptable risk of doing so. DER's proposed finding of fact No. 61 describes the methodology correctly, but the particular results have not been accepted. With respect to DER's proposed finding of fact No. 65, predicted concentrations depend on the leakage rate assumed. With respect to DER's proposed finding of fact No. 68, data showing the composition of discharges to ground water from other Class III landfills were not presented. Supposed "legislative facts" do not constitute evidence. With respect to DER's proposed finding of fact No. 69, the evidence did not show what concentrations of biocides or other chemical constituents were likely to be. With respect to DER's proposed finding of fact No. 93, the phrase "monitoring well" was not used. With respect to DER's proposed finding of fact No. 94, wells Nos. 21 and 22 were between 25 and 35 feet deep. Haydon McCormick testified that a shallow well near the house was for potable water supply. DER's proposed finding of fact No. 96, has been adopted, in substance, except that additional time might not be required for permitting. With respect to DER's proposed findings of fact Nos. 97 and 99, balancing of social and economic interests is appropriate only if hardship is proven, and immaterial otherwise. The City's proposed findings of fact Nos. 1-9, 16-18, 20-25, 30, 33, 35-38, 42, 44, 46, 49, 50, the first two sentences of No. 55, Nos. 58-62, 65, 73, 74, except for the last sentence, Nos. 75, 77-83, 88-92, 94-100, 104, 107, 108 and 110 have been adopted, in substance, insofar as material. With respect to the City's proposed finding of fact No. 10, despite timbering of the uplands the site was characterized as "relatively unaltered." With respect to the City's proposed finding of fact No. 11, no decline in water levels was shown to be irreversible. With respect to the City's proposed finding of fact No. 12, the study was of "trivial value." With respect to the City's proposed finding of fact No. 13, bald eagles and wood storks do make use of the site and indigo snake(s) were set loose there. With respect to the City's proposed finding of fact No. 14, a witness testified to his "confidence" (T.2918) that the kestrel he spotted was a Southeastern kestrel. Signs of alligator were found near the southeast corner of the property. With respect to the City's proposed finding of fact No. 15, hunting was mentioned. The City's proposed findings of fact Nos. 19, 54, 56 and 84 pertain to subordinate matters. With respect to the City's proposed finding of fact No. 26, the witness so testified. With respect to the City's proposed finding of fact No. 27, it was not proven that noise would be "minimized." With respect to the City's proposed finding of fact No. 28, bears could move through the culvert, but elsewhere the access road (particularly during the day), fences and human activity on site would indeed "impede black bear movement in the area." The City's proposed findings of fact Nos. 29, 48, the last sentence of 55, Nos. 57, 71, 72, 85, 87 and the last sentence of 101 have been rejected as being against the weight of the evidence or as unsupported by the preponderance of evidence. With respect to the City's proposed finding of fact No. 31, mobility will not assure successful relocation if existing populations are fully utilizing habitat in the vicinity. The City's proposed findings of fact Nos. 32, 86 and 93 are properly proposed conclusions of law. With respect to the City's proposed finding of fact No. 34, groundwater was shown unlikely to reach solid waste on site. With respect to the City's proposed finding of fact No. 40, the maximum head would not be less than one inch. With respect to the City's proposed finding of fact No. 41, such sand might not be available on site. With respect to the City's proposed finding of fact No. 43, some leachate would leak through the liner. With respect to the City's proposed finding of fact No. 45, some rainwater would infiltrate. With respect to the City's proposed finding of fact No. 47, the evidence did not show that the clayey sand layer would attain so low a vertical hydraulic conductivity. If these liners have performed well, it has not been without leakage, both through flaws and by permeation. With respect to the City's proposed finding of fact No. 51, the subgrade would be inspected, in an effort to assure complete removal of sharp objects. With respect to the City's proposed findings of fact Nos. 52 and 53, permeability is specific to the permeant. The values quoted are for water. High density polyethylene is highly permeable to aromatic hydrocarbons. That liners leak is not speculation. With respect to the City's proposed finding of fact No. 63, the design engineer envisioned circumstances that would require backing leachate up in the landfill. With respect to the City's proposed finding of fact No. 64, violations were proven, in the absence of sufficient attenuation in the vadose zone, and attenuation there was not quantified. With respect to the City's proposed findings of fact Nos. 66 and 67, these evaluations assumed unrealistically low leachate leakage rates. With respect to the City's proposed finding of fact No. 68, this elaborate house of cards bears little relationship to the language of the free from rule. But this approach, too, shows violations, if realistic leakage rates are used. With respect to the City's proposed finding of fact No. 69, credible and credited evidence of dramatically higher leachate leakage rates than they assumed contradicted their conclusions. With respect to the City's proposed finding of fact No. 70, the witness so testified. With respect to the City's proposed finding of fact No. 76, the precise constituents of the Class III leachate were not proven. With respect to the City's proposed finding of fact No. 102, the witness so testified. With respect to the City's proposed finding of fact No. 103, the well that Haydon McCormick jetted in was 25 to 35 feet deep. With respect to the City's proposed findings of fact Nos. 105 and 106, wells could be placed so that enough water drawn from them would reverse the gradient and cause pollutants to move toward the McCormick property. With respect to the City's proposed finding of fact No. 109, the evidence about the effect on operations was ambiguous. With respect to the City's proposed finding of fact No. 111, it is unlikely that the McCormicks would take steps to reverse the flow of groundwater. APPENDIX B Three methods of calculating per defect leachate leakage rates (in cubic meters per second) were proven at hearing, each expressed as an equation or formula requiring values for three variables, for their solution, viz.: h = height of leachate head over defect (in meters) a = area of defect (in square meters) Ks = permeability (vertical hydraulic conductivity) of clayey sand layer beneath defect (in meters per second) The method advocated by the City, published by the EPA, and shown (by the author) to reflect ideal contact between liner components, which does not obtain in practice, is: Q = (0.7) x (h) x (a0.1 x Ks0.88). The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect good contact between liner components, shown likely to occur in places, is: Q = (0.21) x (h0.9) x (a0.1 x Ks 0.74) The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect poor contact between liner components, shown likely to occur in places, is: Q = (1.15) x (h0.9) x (a0.1 x Ks 0.74) In each case, Q represents the flow of leachate through each defect. COPIES FURNISHED: Carlos Alvarez and Carolyn S. Raepple Hopping, Boyd, Green and Sams Post Office Box 6525 Tallahassee, Florida 32314-6526 Harrison D. Upchurch and Frank D. Upchurch, III Upchurch, Bailey, and Upchurch, P.A. Post Office Box 170 St. Augustine, Florida 32085-0170 Joseph M. Glickstein, Jr. Glickstein and Glickstein 444 Third Street Neptune Beach, Florida 32233-5111 David S. Dee and Allan Wagner Carlton, Fields, Ward, Emmanuel Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 C. Rufus Pennington, III Margol and Pennington, P.A. Suite 1702, American Heritage Tower 76 South Laura Street Jacksonville, Florida 32202 Debra Swim 1323 Diamond Street Tallahassee, Florida 32301 Sidney F. Ansbacher Turner, Ford and Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32207 Dan Brooks Hendrickson and 104 Sixth Avenue 4620 Arapahoe Avenue Pass-A-Grille, Florida 32706 Jacksonville, FL 32208 Frank X. Friedman, Jr. T. R. Hainline, Jr. G. Stephen Manning Marcia P. Parker Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive Jacksonville, Florida 32207 William H. Congdon and Chris McGuire 2600 Blairstone Road Tallahassee, Florida 32399-2400 Kathryn L. Mennella Post Office Box 1429 Palatka, Florida 32078-1429 Larry Gilmore 9131 Fort Caroline Road Jacksonville, FL 32225 Larry A. Wells 237 Pablo Road Ponte Vedra Beach, FL 32082 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue Should Petitioner's application for variance from the standards for onsite sewage treatment and disposal systems be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, through its local health units, is the agency in the State of Florida responsible for permitting or granting variances from permitting standards set forth in Chapter 64E-6, Florida Administrative Code, for Onsite Sewage Treatment and Disposal Systems (OSTDS). Sometime around 1970, Petitioner purchased a mobile home park (Park) in Winter Haven, Florida. The Park presently contains 68 spaces for mobile homes, all of which are occupied. The Park is situated due south of Lake Shipp. There are two canals running approximately east and west through the interior of the Park. Another canal borders the Park on the north side. Included with the purchase of the Park was a Sewage Treatment System (STS) which is permitted and regulated by the Department of Environmental Protection and is presently operating at its maximum capacity serving the 68 mobile homes located in the Park. Sometime around 1980, Petitioner purchased a parcel of land (Property) immediately north of, and across a canal (this is the canal that borders the north side of the Park) from, the Park. The Property borders a basin to Lake Shipp. The Property is zoned for mobile home usage and such is the purpose for which Petitioner purchased the Property. Petitioner has designed the Property such that it will accommodate three mobile home lots (Lots numbered 69, 70, and 71) which Petitioner intends to operate as part of the Park. Initially, Petitioner requested approval of the Department of Environmental Protection to connect the new lots to the existing STS. However, since the existing STS was already at capacity, the Department of Environmental Protection denied Petitioner's request to connect the additional three lots to that system. However, the Department of Environmental protection advised Petitioner that it would have no objection to the installation of septic tanks approved by the Department of Health to serve the additional lots. Subsequently, Petitioner proceeded to obtain the necessary approvals from the local governing authorities and a permit from the Department for the installation of septic tanks on the Property. Petitioner was successful in obtaining the necessary approvals from the local governing authorities but was not successful in obtaining a permit for the installation of septic tanks on the Property from the Department. By letter dated July 16, 1997, the Polk County Health Department denied Petitioner's Application for Onsite Sewage Treatment Disposal System Permit for the following reason: "Domestic sewage flow exceeds 10,000 gallons per day." The denial letter also advised Petitioner that she could request a variance through the Variance Review Board or request an administrative hearing pursuant to Chapter 120, Florida Statutes, on the Department's denial of her application for a permit to install septic tanks on the Property. Petitioner elected to file an application for a variance from Section 381.0065(3)(b), Florida Statutes, with the Variance Review Board. By letter dated August 7, 1997, the Department denied Petitioner's application for variance for the following reasons: The Variance Review and Advisory Committee for the Onsite Sewage Treatment and Disposal Program has recommended disapproval of your application for variance in the case of the above reference property. The granting of variances from established standards is for relieving hardships where it can be clearly shown that the public's health will not be impaired and where pollution of groundwater or surface water will not result, where no reasonable alternative exists, and where the hardship was not intentionally caused by the action of the applicant. The advisory committee's recommendation was based on the failure of the information provided to satisfy the committee that the hardship was not caused intentionally by the action of the applicant, no reasonable alternative exists for the treatment of the sewage, or the discharge from the system will not adversely affect the health of the public. I concur with the advisory committee's recommendation and hereby deny your variance request. Subsequently, Petitioner requested and was granted a formal hearing pursuant to Chapter 120, Florida Statutes, on the denial of Petitioner's application for a variance. The Petitioner intends to locate the OSTDS on the Property. The tank and drain field for the OSTDS will be located approximately 125 feet from the basin. The City of Winter Haven's Sewage System is not available to the Property. The Park's existing STS does not have adequate capacity to accept the sewage that will be generated by the Property. There is no publicly-owned or investor-owned sewage system capable of being connected to the plumbing of the Property. Petitioner testified that the estimated cost of increasing the capacity of the Park's Sewage System to accommodate service to the three additional lots was $30,000.00 - $40,000.00. However, Petitioner presented no evidence as to how the estimate was determined. The projected daily domestic sewage flow from the Property is less than 1,500 gallons per acre per day. The Property contains 1.78 acres and there will be less than four lots per acre. In a letter dated October 17, 1997, from W. R. Cover, a professional engineer with Cover Engineering, Inc., Mr. Cover expresses the following opinion: The location of these proposed mobile homes is such that a septic system will not cause adverse effects or impacts on the environment or public health. The unit will be located so as not to significantly degrade groundwater or surface waters. There is no reasonable alternative for the treatment of the sewage in view of the fact that it would be an additional financial burden to attempt to connect these units to the existing sewage treatment plant Mr. Cover did not testify at the hearing. However, the letter was received as evidence without objection from the Department. Petitioner has failed to present sufficient evidence to show that: (a) no reasonable alternative exists for the treatment of the sewage, and (b) the discharge from the Onsite Sewage Treatment and Disposal System will not adversely affect the health of the applicant or the public or significantly degrade groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order denying Petitioner's application for variance from the requirements of Section 381.0065, Florida Statutes and Chapter 64E-6, Florida Administrative Code. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Robert J. Antonello, Esquire Antonello, Fegers and Cea Post Office Box 7692 Winter Haven, Florida 33883-7692 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-0293
The Issue Whether the Petitioner's Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems should be approved?
Findings Of Fact By letter dated September 9, 1986, the County Engineer for Volusia County, Florida, denied the Petitioner's request for expedited subdivision. On or about October 15, 1986, the Petitioner filed an Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems (hereinafter referred to as the "Application"). On or about November 12, 1986, the Volusia County Health Department recommended denial of the Application. By letter dated November 24, 1986, the Respondent advised the Petitioner that his Application had been placed on the agenda of the Variance Review Group's December 4, 1986 meeting. By letter dated December 16, 1986, the Respondent informed the Petitioner that the Application was denied. By letter dated January 7, 1987, from the Petitioner's counsel, the Petitioner requested a formal administrative hearing to contest the proposed denial. The property involved in this case is located at 1083 Sheri Boulevard, Daytona Beach, Volusia County, Florida (hereinafter referred to as the "Property"). The Petitioner's parents originally owned 10 acres of property. By warranty deed dated September 12, 1958, the Petitioner's parents gave the Petitioner the Property which consisted of two lots from the ten acres, described as follows: The Easterly 149 feet of the Westerly 295 feet of the Southerly 1/2 (one half) of Lot 140, Blake, as per map in Map Book 1, page 38, of the public records of Volusia County, Florida. The Petitioner's parents also gave five acres of the ten acres to another individual in 1958. This property was developed as a mobile home park. The Property measures 150 feet x 150 feet. The property immediately to the west of the Property is currently owned by the Petitioner's Father. It measures 155 feet x 150 feet. Between 1958 and 1960 the Petitioner began construction of a single- story house on the Property. Also between 1953 and 1960 the Petitioner placed a mobile home on the Property. The Petitioner and his family lived in the mobile home while his house was being constructed. Two septic tanks were placed on the Property sometime between 1958 and 1960. The mobile home located on the Property was hooked up to one of the septic tanks. In 1960 construction of the house was completed and the Petitioner and his family moved into the house. The mobile home remained on the Property until 1961 when it was permanently removed. When construction of the house was completed, both septic tanks were connected to the house. Since 1961, trailers have been temporarily on the Property and have been hooked up to one of the septic tanks. Use of the septic tank by trailers has been infrequent, however, since 1961. Recently the Petitioner placed a mobile home on the Property and hooked it up to one of the septic tanks. The Petitioner was cited by the Volusia County Code Compliance Board for having the mobile home located on the Property. Subsequent to the action by the Volusia County Code Compliance Board the Petitioner attempted to subdivide the Property. The Petitioner proposes using a portion of the Property and a portion of his Father's adjoining property to create a lot 60 feet by 150 feet. The evidence failed to prove how much of the Property and how much of the Petitioner's Father's property would be used to create the new lot. The Petitioner wants to put a mobile home on the new lot and hook it up to one of the existing septic tanks on the Property. The Petitioner plans to provide the mobile home as a home for his daughter who is unemployed. Both of the existing septic tanks on the Property would remain on the Property if the subdivision is approved. The Property is .39 acres and the Petitioner's Father's adjoining lot is .48 acres. The Property and the Petitioner's Father's adjoining property have existing single story residences and use wells located on the property. The private well on the Property is less than 75 feet from the septic tanks. If a new lot is created, it will be located between the Property and the Petitioner's Father's property and all three lots will be less than 1/2 acre in size. The two septic tanks on the Property are larger than normal and the Petitioner is not aware of any problem with the two tanks. The Petitioner does not believe that there has been any contamination of his well caused by the septic tanks. Mobile homes are located in the mobile home park and on other lots in the area of the Property. The mobile homes are located on lots of less than 1/2 acre and they use septic tanks. There is therefore, a high concentration of septic tanks in the area. Mobile homes are frequently moved on and off property in the area but other lots do not remain vacant for any appreciable time. The Respondent reviewed the Petitioner's Application in accordance with its Rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's Application be denied. DONE and ENTERED this 24th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1987. COPIES FURNISHED: Mr. Sam Power, Clerk Department Of Health and Rehabilitative Services 1323 Wine wood Boulevard Tallahassee, Florida 32399-0700 Mr. Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 James L. Rose, Esquire Rice and Rose Post Office Box 2599 Daytona Beach, Florida 32015 Frederick J. Simpson, Esquire District IV Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing installation of an OSDS on property which Petitioner owns near the Suwanee River in Dixie County, Florida, in accordance with Section 8l.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is an owner, by joint tenancy, of real property located in Dixie County, Florida, more particularly described as part of Government Lot 1, Section 4, Township 11 South, Range 13 East; closely proximate to the Suwanee River at a location generally known as "New Pine Landing". The surrounding property is characterized by homes and mobile home,;, which have OSDS's installed and operating. The subject property has no improvements constructed thereon, although the Petitioner intends the placement of a 12X60 foot mobile home, containing two bedrooms and one bathroom. There is no OSDS of any type installed on the property at the present time. The subject property is approximately 18.5 acres in size. It was purchased on January 17, 1990, but the property in question has never been platted. On March 20, 1990, the Petitioner made application for an OSDS permit for the aforesaid property, which was denied by the Respondent's letter of denial dated April 23, 1990. The Petitioner was not afforded the opportunity to pursue an informal variance application through the variance procedure set up by the statute and rules cited hereinbelow. Rather, the Respondent, in its denial letter, indicated that, because of the perceived effect of the Governor's Executive Order, discussed hereinbelow, no variances were being granted and the variance procedure would be "bypassed" in favor of affording the Petitioner a formal administrative hearing before the Division of Administrative Hearings concerning the permit denial. The Petitioner testified generally concerning the character of the property in question and the general nature of the terrain and vegetation. The property is characterized by a wetland or swampy area at one end of the property and, in the area of the proposed installation site, the ground elevation is higher, with a benchmark elevation of 8.8 feet above mean sea level ("MSL"), as established by Herbert H. Raker, certified land surveyor, and depicted by Petitioner's Exhibit 2 in evidence. The Petitioner offered no testimony concerning the ground water levels, other than to say that at one point in time, he dug a three-foot-deep hole on the subject property near the septic tank installation site and observed no water in the hole. His testimony did not indicate at what season of the year the observation was made nor whether conditions were wet or dry at the time. The only concrete evidence concerning ground water level at this installation site was that offered by the Respondent, which indicates that the ground water level at the time of the site evaluation was 42 inches below the surface of the property in question at the proposed installation site and, through observation of "mottling1, of the soil, indicating the presence of dampness, that the wet season water table is 12 inches below the surface of the property. Likewise, the Petitioner professed to have no knowledge of the ten-year flood elevation for the property. The Respondent's evidence, derived from materials submitted by the Petitioner in furtherance of the application, consisting of a report from the Suwanee River Water Management District, establishes that the ten-year flood elevation is 14 feet above MSL for Suwanee River Mile 29, which corresponds to the location of the subject property. The property is also located within the regulatory floodway administered by the Suwanee River Water Management District. Rule 10D-6.047, Florida Administrative Code, mandates that before a mounded system for on-site sewage disposal can be installed, a certification by a registered engineer would be necessary to determine that installation of such a mounded system would not raise the level of the "base flood". No such engineering testimony or evidence has been offered in this proceeding, however. The Petitioner further testified in a general sense that it would be a hardship not to be able to) install the OSDS on the property, given the money paid to purchase the property and the intent by the Petitioner to use it for a residence. The Petitioner has no use for the property without being able to use it for a residence. The Petitioner, however, did not offer any testimony or evidence concerning alternatives to installing the proposed OSDS, nor did the Petitioner establish that installation of such a system or an alternative system would pose no adverse health effects on the Petitioner or members of the general public nor that it would pose no degradation to the surface or ground waters involved for purposes of the Petitioner establishing entitlement to a permit or a variance It should be remembered, however, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances, or permits for OSDS within the ten-year flood elevation. This leads to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such system; beneath the ten-year flood elevation was entered on January 17 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting, for the reasons found and concluded above; and without prejudice to pursuing an OSDS permit application at a later time should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3120 Respondent's Proposed Findings of Fact: 1-9. Accepted. Petitioner's Proposed Findings of Fact: None filed. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mary Ann White and Inman White P.O. Box 756 Old Town, Florida 32680 Frances Childers, Esquire Assistant District Legal Counsel HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609
Findings Of Fact The Petitioner is the owner of Lot 22 at Hatch Bend Upon Suwannee, a subdivision platted and recorded in 1979. Lot 22 lies at river mile 59 of the Suwannee River, as determined by the Suwannee River Water Management District. The Petitioner purchased the property for a site to construct a residence for his retirement. He desires an OSDS to serve a small dwelling which he proposes to construct on the site of approximately 1,000 square feet. The lot is two acres in size. The subject lot is high, level and well drained. In depth, it extends approximately 600 feet from the shoreline of the Suwannee River, upon which it has approximately 150 feet of river frontage. The lot is not subject to frequent flooding, however, as established by a registered land surveyor, the grade elevation of the lot is approximately 19.7 feet above mean sea level ("MSL"), with a benchmark elevation of 20.20 feet at the highest point. The ten-year flood elevation for river mile 59 was established, through information derived from the records of the Suwannee River Water Management District, and in evidence, to be 24 feet above MSL. Thus, the surface of the property involved and the septic tank system installation site lies beneath the ten-year flood elevation. The property, in other particulars, appears to comply with the statute and rules governing requirements for the grant of OSDS permits. That is, the water table level was shown to be more than 72 inches below the surface of the property, which is more than adequate in terms of separation of the proposed drainfield trenches from the ground water table. The soil lying beneath the property is "fine sand", which is a limited soil of an appropriate type for the successful functioning of an OSDS. Based upon mottling found in the soil, the water table during wet seasons is estimated to be at 72 inches below the surface, again, a more than adequate separation between the water table during wet seasons and the bottom of the proposed drainfield trenches. Thus, the subject site is amenable to the installation of an OSDS, but for the fact of its elevation beneath the required ten-year flood elevation. In terms of establishing entitlement to a variance from the subject rule concerning the prohibition of installation of drainfield trenches which will be subject to flooding based upon the ten-year flood elevation, the Petitioner offered no real concrete evidence. The Petitioner merely testified that it was a hardship for him not to be able to construct his proposed retirement home on the property because of the inability to obtain an OSDS permit; however, he did not establish that there were no reasonable alternatives to the normal OSDS proposed and applied for, as for instance, a mounded system so that the drain fields could be installed above the ten-year flood elevation or some other alternative sewage disposal and treatment system. Thus, the Petitioner did not establish that no reasonable alternative exists but to install the normal OSDS, nor did the Petitioner establish that installation of such a system beneath the natural grade would pose no threat to the public's health or the health of the Petitioner. The Petitioner did not establish that such a system would not pose an adverse impact on surface and ground waters in and in the vicinity of the proposed installation site. Thus, no entitlement to a variance from the permitting requirements in the statute and rules cited below was established. The Respondent takes the position that the variance and the permit application should be denied because the proposed installation site lies below the ten-year flood elevation, and, as the Respondent interprets the Governor's Executive Order No. 90-14, issued on January 17, 1990, which adopted Suwannee River Task Force Report Recommendation NO. 36 by reference, the variance request and the permit application should be denied because that Executive Order and the Report Recommendation it incorporates, in essence, calls for the prohibition of any installation of such systems below the ten-year flood elevation based upon a presumption that such would adversely affect public health and the ground and surface waters. The Respondent takes the position that it cannot discretionarily grant variances in such a situation because of the Executive Order.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of Vernon Merritt for an OSDS permit and for a variance from the above-discussed permitting requirements, be denied. DONE AND ENTERED this 18th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3340 The Petitioner submitted no proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted. Accepted. Accepted. 4-5. Accepted, but not relevant and material. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Vernon Merritt P.O. Box 325 Inglis, FL 32649 Frances S. Childers, Esq. Assistant District 111 Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609 =================================================================
The Issue The issues for consideration in these cases concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit, or the grant of a variance from the permitting requirements embodied in the statutes and rules cited herein, so as to authorize installation of an OSDS for property they own near the Suwanee River in Dixie County, Florida. See, Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners are the owners of certain real property located in Dixie County, Florida, in close proximity to the Suwanee River, more particularly described as Lots 22 and 37, High Point Suwanee Riverfront Estates, a subdivision platted and recorded in 1983. Lot 22 is approximately 150 feet by 127 feet by 121 feet, and Lot 37 is approximately 100 feet by 175 feet by 176 feet in dimension. The lots were purchased on September 22, 1987 and December 10, 1987, respectively. The parties have stipulated that evidence and factual testimony adduced in this proceeding shall apply equally to the circumstance of both lots since they are in close proximity to each other and have similar elevations and other site characteristics. Accordingly, these Findings of Fact will be based upon that stipulated, combined evidence; and all Findings of Fact will apply to both lots, except as to elevation figures peculiar to each lot and as otherwise noted in these Findings of Fact. The Petitioners purchased Lot 22 for $14,995.00 and Lot 37 for $12,500.00. They were purchased in September and December of 1987, respectively. The Petitioners purchased them with the intent of holding them for investment and building a retirement-type home on one of the lots. On March 22, 1990, the Petitioners applied for an OSDS permit for the lots in question. The new systems applied for would be for a frame-type "stilt home", which would contain three bedrooms and a heated and cooled area of 1,232 feet, which equates to a 350-450 gallons per day sewage flow under the standards contained in the Respondent's rules. Hubert H. Raker, a certified, land surveyor of Cross City, Florida, performed a survey on the property, shown by Petitioners' Exhibit NO. 1 in evidence. That survey establishes a benchmark elevation for Lot 22 of 11.79 feet above mean sea level ("MSL"). That benchmark is actually six inches above the grade level elevation of the property at the benchmark location. Lot 37 was established to have a benchmark elevation of 12.25 feet above MSL, also six inches above the actual grade level of the lot at the benchmark elevation site. The site of the proposed installation of the OSDS has an elevation of 11.19 feet above MSL, as to Lot 22, and 11.75 feet above MSL, as to Lot 37. The ground water level, at the time the site evaluation was made by the Respondent's representative, was 60 inches below the surface of the grade for Lot 22 and 54 inches below the surface of the grade for Lot 37. The wet season water table for both lots was shown, by "mottling" existing in the soil beneath the surface of the lots, to be 54 inches below `:he surface of both lots. The soil type for both lots, starting with six inches below the surface, is of a "slight limited" soil characteristic and is fine sand down to approximately 48 inches and from 48 inches to 72 inches, consists of "loamy-sand". Such soils are well adapted to OSDS installation and operation. The property was shown, by the Respondent's own Composite Exhibit NO. 2 in evidence, to not be subject to frequent flooding. The property is, however, as to both lots, beneath the ten-year flood elevation established by the Suwanee River Water Management District's calculations and admitted into evidence in this proceeding as a part of Respondent's Composite Exhibit NO. 2. The ten-year flood elevation for both lots was shown to be 15 feet above MSL. Thus the surface elevation of both lots is somewhat below the 15-foot, ten-year flood elevation. The bottom of the drain-field or absorption-bed trenches, if the systems were installed on the lots, would be a greater distance beneath the ten- year flood elevation. Thus, the property is located within the ten-year flood elevation of the Suwanee River and is also located within the regulatory floodway of the Suwanee River. Other properties and lots in the immediate proximity of the Petitioners' two lots are equipped with OSDS's, including a number of "mounded systems", involving the placement of septic tanks and drain fields in elevated earthen mounds in order to elevate them above the ten-year flood elevation. Petitioner, John W. Holian, testified in a general way that such a system might be feasible and advisable in his situation, as well as the possibility of installing an aerobic septic tank treatment and disposal system, involving the injection of air into the septic tanks so that aerobic, (as opposed to anaerobic), bacteria could perform the sewage treatment function, which typically perform the function better than does a conventional anaerobic system. Petitioner Holian, did not offer any detailed testimony or evidence which would explain and establish how such a system could work without endangering the health of the Petitioners or members of the general public, if placed on the lots in question below the ten-year flood elevation, nor if or how such a system would protect against degradation of the ground or surface waters involved in the proximity" of the sites. If the system were mounded above the ten-year flood elevation, the Petitioners did not establish, through proper engineering testimony and other evidence generated by a registered engineer, that the use of the fill for the earthen mound for such a system would not raise the level of the "base flood." In summary, although the Petitioners suggested such a mounded system or an aerobic system or such a system possibly used in combination, the Petitioners did not go beyond suggesting an alternative and did not offer evidence which could establish that such an alternative would be a reasonable operationally feasible one and would adequately protect the ground or surface waters and the members of the general public from health hazards associated with sewage effluent. See, Rule 10D-6.47(6), Florida Administrative Code. On May 1, 1990, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding upon the initial denial of their OSDS permit application and advised them that an application for a variance from the requirements of Rule 10D-6.47(6), Florida Administrative Code, regarding the ten-year flood elevation problem at issue, should not be pursued but rather, the formal hearing process before the Division of Administrative Hearings should be employed by the Petitioners. The Respondent asserts, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such systems beneath the ten year flood elevation was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications. The Petitioners apparently took-that advice because no variance application was filed. It is noted, somewhat parenthetically, however, that in terms of the requirements for the establishment of a right to a variance, the Petitioners have not shown that no reasonable alternatives exist to a standard subterranean septic tank and drain field OSDS, (such as those alternatives referenced in the paragraph next above, which efficacy was, nonetheless, not established by the Petitioners). Neither did the Petitioners establish, in terms of the variance requirements in the authority referenced below, that the installation of an OSDS would not have an adverse effect on the public's health or the quality of the ground or surface waters involved at the sites. Because these two necessary elements of proof necessary to establish the right to a variance, through hardship, were not proven by the Petitioners, the elements of proof necessary to establish the right to a hardship variance have not been made out by the Petitioners and one could not be granted under the proof of record in this proceeding, even had the Petitioners made formal application for such a variance. That is not to say, however, that with proper preparation and presentation of evidence, entitlement to a variance could not be established in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3109 AND 90-3445 The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact 1-9. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John W. Holian 466 South Lake Triplet Drive Casselberry, Florida Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, Florida 32609
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit: "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation." At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED. Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1981. COPIES FURNISHED: Valerie Fravel Corporate Counsel General Development Corp. 1111 South Bayshore Drive Miami Florida 33131 Alfred J. Malefatto Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
